By Matt Walker
Senior writer/Assistant Editor, UF LAW Magazine
Due to our increasingly globalized world, those in the international trade community are continually presented with new challenges in aligning international and domestic trade laws, a senior federal judge for the United States Court of International Trade told UF Law students during a visit mid-October.
Judith Barzilay delved into the history and jurisprudence of the court and explained specific types of cases the court handles during an open lecture, "X-men and Charming Betsy at the U.S. Court of International Trade: Otherworldly creatures and international law as part of U.S. law," in Professor Berta Hernández-Truyol's International Trade Law class.
"As you know, any court's role is a very limited one," Barzilay said. "We have to interpret the laws that Congress enacts and we really can't do much more than that. ... However, as you know from studying international law, world conditions change and the conditions of international trade change, and they change far more quickly than the legislative process can keep up."
Barzilay said the U.S. Court of International Trade basically handles three types of cases: customs, trade and trade adjustment. "Some of the most interesting cases we hear involve the classification of imported merchandise," she said.
The senior judge recounted a 2003 case in which the court had to determine whether X-Men action figures should be considered human replicas or "replicas of other-worldly, imaginary creatures."
Although it may seem like a minor detail for a federal court to address, for both the importer of the toys and the U.S. government, it was worth taking time to examine because if the toys were considered non human they were eligible for duty-free treatment, which would save a substantial amount of money for the importer.
"My law clerks and I had 50 little toy figures all lined up and were scrutinizing them and trying to decide whether they were human or otherworldly."
Ultimately, they decided the toys were otherworldly, which resulted in some backlash Barzilay didn't expect.
The story made the front page of the Wall Street Journal and she got a call from her son who told her she was being "trashed all over the Internet."
"Apparently people took this very, very personally because people really like the X-Men; they think of them as heroes and heroines," Barzilay said.
Barzilay also discussed more intricate cases they deal with, which don't usually receive as much attention in the mainstream media, including countervailing and antidumping duties. She said it is in these areas that the court's jurisprudence most often conflicts with international trade adjudications.
Often because laws such as zeroing — a way of equalizing foreign competition and imposing antidumping duties — are in the best interest of the United States, these cases can be particularly challenging when taking into consideration international laws.
She cited a case where the plaintiff — a foreign company — sued under the Charming Betsy Doctrine saying that zeroing violates the World Trade Organization's antidumping agreement, which the U.S. government signed. The doctrine from 1804 regarding a schooner called the Charming Betsy states that "an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains."
"I predict that these cases will continue to bedevil me and my colleagues and this kind of litigation, and especially litigation from our international agreements, will continue to be an ever-expanding caseload in our docket."
President Bill Clinton appointed Barzilay to the U.S. Court of International Trade in 1998. She received senior status on the court in June.