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Article Title

The Trade Litigant's Gauntlet: The Hanging Judge and the Teflon Tribunal

Abstract

The two U.S. agencies charged with conducting antidumping investigations may justifiably be labeled a "hanging judge" and a "Teflon tribunal." The Department of Commerce (DOC) investigates whether foreign firms have engaged in "dumping" exports to the United States. Since assuming responsibility for dumping investigations in 1980, the DOC has found that over 90% of the firms it investigated were "guilty." Such one-sided results subject far too many foreign firms to antidumping duty orders - which impair their ability to sell to the U.S. market - and send the wrong message to the United States' trading partners. Because the U.S. antidumping statute itself prescribes some of the key rules that inflate dumping margins, the DOC will remain a "hanging judge" unless the statute is amended. The International Trade Commission (ITC) investigates whether the U.S. industry was injured by the allegedly dumped imports. The "Teflon tribunal" label, however, arises not from the ITC's conduct during the investigation but from its conduct upon remand from a court. In most instances of remand, the court instructs the agency to reconsider the injury analysis anew - without predisposition to the previous decision. Yet, the ITC has never reversed a previous injury decision based on a genuine reconsideration of the merits. Instead, benefiting from an extensive factual record and the courts' deferential standard of review, it appears that the ITC conducts a results-driven process on remand. Greater scrutiny from the courts and parties is needed to check the ITC's behavior as a Teflon tribunal on remand.

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