Daniel H Erskine
Attorney & Solicitor

This article explores the calculated use of legal mechanisms to impact national politics and the effect such utilization had on accomplishing deliberate political reform. In answering why political actors use legal procedures as political weapons and whether such use is effective, this paper analyzes two historical examples to illustrate that law as political weapon is extremely successful in accomplishing political change. In the early 1800's, England's King sought to defrock his politically radical heroine Queen Caroline through the parliamentary mechanism of a Bill of Pains and Penalties, which caused a flourish of public criticism and call for political revolution. Public reaction to the legal mechanisms utilized by King resulted in accomplishing the King's goal of quelling revolutionary zeal as well as subsequently radically reforming English parliamentary politics. In a similar vein, the U.S. Congress in 1998 utilized the legal mechanisms of impeachment to unseat President William Jefferson Clinton. Impeachment of President Clinton served the Republican Congress' political interests and resulted in the Republicans obtaining great electoral success. Ultimately, discussion of these two historical epochs advocates future use of legal procedures as political weapons in only certain limited circumstances. Cited Henry Brougham Per(for)ming the Defense, 23 Green Bag 2d 251, n.1 [2020], Trial by Media: The Queen Caroline Affair, Bibliography and Essay Collection, Henry Brougham Per(for)ming the Defense (Lewis Walpole Library and Lillian Goldman Law Library, Yale University 2020), Max Planck Encyclopedia of Comparative Constitutional Law, Impeachment (Oxford University Press 2016, 2017), How Long Is History's Shadow?, 127 Yale L.J. 880-934, 917 n. 142 (2018) (Book Review), The Queen's Case, (2009) ALJ 669, 675 n.49 (The Australian Law Journal), Presidential Impeachment: A Contemporary Analysis, 44 U. Dayton L. Rev. 529, 543 n. 65 (2019), The Emperor's New Clothes: An Intersection of Presidential Immunity and Criminal Accountability, 35 Touro L. Rev. 757, 774 n. 127 (2019), Bill Clinton, A Bibliography 151 (2002-2020) (clintonlibrary.gov).

This article describes the methods utilized by the United States Supreme Court to resolve specific cases involving conflicts between federal constitutional rights, a federal constitutional right and a state constitutional or statutory right, and an international treaty right and a federal constitutional right. Consideration of particular decisions representative of the manner the Court resolves conflicts between rights in the three typologies described above, illustrates how the Court views such conflicts and the rationales employed to resolve apparent conflicting rights. The rationales used by the United States Supreme Court are compared to the South African Constitutional Court's decisions in the Soobramoney, Grootboom, and South African Broadcasting Corp. Ltd. cases. By comparing the reasoning utilized by both courts, this article illustrates distinct judicial methods applied to rationally resolve conflicts between significant individual rights. The comparison serves to permit presentation of a universal method to resolve conflicting fundamental rights for judicial authorities to use across the broad array of legal situations in which conflicts between significant rights occurs. Cited Suprema indecisão: a metodologia em Direito Constitucional Comparado e as deficiências em seu uso pelo Supremo Tribunal Federal, Internacional, Brasília, v. 17, n. 1, p.125-142 (2020). Journalism: New Trends And Its Impact On Right To Privacy. Comparative Analysis With Special Reference To India, The Age of Human Rights Journal, 10 (June 2018) pp. 64-84, p. 74 nn. 40, 41, When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony?, Introduction p. 8 n. 40 (2017) (Oxford University Press), Human dignity and fundamental rights in South Africa and Ireland pp. 283, 350, 351, 363, 364, 366, 543, 584 (2014) (Pretoria University Law Press), Transformative constitutionalism: Comparing the apex courts of Brazil, India and South Africa, Preliminary notes on transformative constitutionalism pp. 44 n. 57 (2013) (Pretoria University Law Press).

Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring the case to alternative dispute resolution. Cited Damages and Compensation Culture: Comparative Perspectives, Identifying and Calculating Personal Injury Damages in Ireland, Italy, France and Belgium: Recent Debates between Scholars, Judges and Practitioners p. 119, n. 30 Personal Injuries Assessment Board: A Decade of Delivery? p. 154, n. 57 p. 178, n. 189 (Hart/Bloomsbury Publishing 2016), Personal Injury Reform: Eight Years On [2012] COLR 65 nn. 15-20, 62 (University College Cork, Ireland Online Law Review), Defense Counsel Journal, Volume 74, p. 398 (2007), IPSOA, Danno e responsabilità, La qualificazionee la quantificazione del dannoalla persona nell’otticadel diritto comparato, 1149 n.22 (12/2013).

The article addresses a current WTO dispute between the United States and the European Communities on selected customs matters. The article discusses the necessity for a uniform WTO agreement on trade facilitation, as well as analyzes the apparent inconsistency between the General Agreement on Tariffs and Trade (GATT) Article X’s mandate for WTO Members to uniformly, impartially, and reasonably administer municipal customs laws and Article XXIV’s allowance of individual members of a customs union to substantially apply common commercial regulations and laws in relation to non-members of the customs union. The article concludes that an agreement between WTO Members on the understanding of the relationship between the obligations of Article X and Article XXIV and the conclusion of a bilateral treaty between the United States and EC concerning harmonization of customs procedures and classification is the solution to the problem presented. Cited The WTO Case Law of 2006-7 pp. 39, 42 (2009) (Cambridge University Press), Investment Law within International Law Integrationist Perspectives chapter 13, 313 n. 69 (2013) (Cambridge University Press), Uniformity of Customs Administration in the European Union p. 50 n. 69, 309 (2015) (Hart/Bloomsbury Publishing), Equity and Equitable Principles in the World Trade Organization: Addressing Conflicts and Overlaps Between the WTO and Other Regimes p. 265 (2016) (Routledge), Dissent as Dialectic: Horizontal and Vertical Disagreement in WTO Dispute Settlement, 48 STAN. J. INT'L. L. 1, 24 n. 85 (2012), Seeing like the WTO: Numbers, Frames and Trade Law, New Political Economy, Vol. 17, No. 1 (February 2012) pp. 77-96 n.8 (reprinted in Seeing Like An International Organization (Routledge 2014)), Pechota Bibliography on Arbitration - 2nd Edition ch. 22 (2011), The Caribbean Intellectual Property Office (CARIPO): New Useful, and Necessary, MICH. ST. J. INT'L L. 551-588, 566 n. 66(2011), Note: Gently Modified Operations: How Environmental Concerns Addressed through Customs Procedures Can Successfully Resolve the US-EU GMO Dispute, 33 WM. & MARY ENVTL. L. & POL’Y REV. 971, 995 n. 204 (2009), Trade facilitation: A Modern Multilateral Trading System, pp. 79 n. 147, 155 n. 333, 335, 336, 157 n. 340, 342, 343, 344, 158 n. 345, 346, 277 (2015) (Non-English).