Saturday, November 20, 2010

Judicial Conference in a Nutshell

I always enjoy the Court of International Trade Judicial Conference, and the most recent edition was no exception. Granted, a lot of the personal enjoyment comes from having the opportunity to see friends and colleagues. But, there is plenty of substance to be absorbed as well.

For whatever reason, the conference skewed somewhat to trade-related discussions over customs this time around. From a customs lawyer's perspective, it would appear that the single most vexing issue facing the trade bar is the issue of Commerce's policy of publishing liquidation instructions within 15 days of a final agency determination. This causes problems because the parties have 30 days in which to challenge the determination by filing a summons. In the ordinary case, the plaintiff gets to Court and asks for an injunction against liquidation to prevent that from happening.  Sometimes, Customs and Border Protection liquidates entries prior to the filing of a summons and request for an injunction. Once the entries liquidate, the case is moot and the potential plaintiff has lost the opportunity to seek judicial review. Everyone seems to agree that the best solution is some kind of automatic stay or injunction against liquidation for the 30 days.

In the midst of this discussion, the question was raised about the role of importers in trade cases. The question, which I asked, had to do with the situation in which the importer wants the entries liquidated at the prevailing rate (whether that is the deposit rate or the assessment rate) without waiting for the respondent and petition to fight it out in court. If you think about, this is the one area of trade law where the importer is at the mercy of the exporter. Yet it is the importer who pays the duties. Importers often complain when they receive a liquidation notice five or more years after the date of entry because the liquidation was suspended pending litigation in which the importer was not even involved. Someone else in the audience suggested that this question raises fifth amendment taking issues. That is a topic that might be worth a law review article.

On the customs front, there was some interesting discussion about the standard for pleading facts in a complaint. The Supreme Court has recently required that the facts plead lead to a "plausible" conclusion that the plaintiff is entitled to relief. According to the panel where this was discussed, this should not be difficult to accomplish, but plaintiffs need to be aware. Otherwise, they might be looking down the barrel of a Rule 12 motion to dismiss.

All in all, it was a good conference. The location at the Trump in Soho was very nice too. Congratulations to everyone on the planning committee.

If you are interested, the papers from the conference are posted here.

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