Indiana International & Comparative Law Review
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INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW VOLUME 7 1996-1997 INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW VOLUME 7 1996 NUMBER 1 TABLE OF CONTENTS ARTICLES A Comparative Analysis of the Influence of Legislative History on Judicial Decision-Making and Legislation .............................. Robert G. Vaughn I It's Broke So Let's Fix It: Using a Quasi-Inquisitorial Approach to Limit the Impact of Bias in the American Criminal Justice System ... Raneta Lawson Mack 63 BOT and Public Procurement: A Conceptual Framework ......................... David A. Levy 95 Telling the Truth and Paying for It: A Comparison of Two Cases-Restrictions on Political Speech in Australia and Commercial Speech in the United States ...................... David S. Bogen 111 COMMENTS Virtual Elimination of Dioxin: Efforts of the United States and Canada to Eliminate Dioxin Pollution as Required by the Great Lakes Water Quality Agreement ............................... 131 To Prosecute or not to Prosecute: Problems Encountered in the Prosecution of Former Communist Officials in Germany, Czechoslovakia, and the Czech Republic .. ............................... 165 Canada's "Barbie and Ken" Murder Case: The Death Knell of Publication Bans? ............... 193 The Canadian-Spanish Fishing Dispute: A Template for Assessing the Inadequacies of the United Nations Convention on the Law of the Sea and a Clarion Call for Ratification of the New Fish Stock Treaty ...................... 223 ERRATA The Board of Editors of the Indiana International& Comparative Law Review regretfully acknowledges an error in Volume 6, Issue 3. The following acknowledgment was printed on page 583 of Lawrence L. C. Lee's article, Taiwan's Antitrust Statutes: Proposals for a Regulatory Regime and Comparison of U.S. and Taiwanese Antitrust Law. "Lawrence L.C. Lee is pursuing a doctoral dissertation at the University of Wisconsin School of Law; LL.M., American University, Washington College of Law 1996; LL.M., Boston University School of Law, 1993; and LL.B. Soochow University School of Law, 1990 (Taiwan). The author would also like to extend his appreciation to his parents for their guidance and inspiration and to his wife, Tabatha, for her patience and support. All errors, needless to say, remain those of the author." The following should have been primed. "Lawrence L.C. Lee is pursuing a doctoral dissertation at the University of Wisconsin School of Law; LLM., American University, Washington College of Law 1996; LL.M., Boston University School of Law, 1993; and LL.B. Soochow University School of Law, 1990 (Taiwan). The author would like to thank Professors Robert H. Lande and Peter Carstensen for their invaluable comments on earlier drafts of this article. The author would also like to extend his appreciation to his parents for their guidance and inspiration and to his wife, Tabatha, for her patience and support. All errors, needless to say, remain those of the author." The Board sincerely regrets this error and apologizes for any inconvenience to all those affected by this ommission. ERRATA The Board of Editors of the Indiana International& Comparative Law Review regretfully acknowledges editing errors in the article Choice of Law for Contracts in China: A Proposal for the Objectivization of Standards and the Use in Conflicts of Law written by Luo Junming and published in Volume 6, Issue 2. The following was printed at the top of page 440: "The People's Republic of China (PRC), due to its unique relationships with economic powers such as Hong Kong, Macao, and Taiwan and its own potential for economic explosion onto the world's economic stage, can and should take the lead in coming terms with the myriad and subjective tools currently used by the jurists of the world to decide conflicts of law." It should have read: "Due to economic powers such as Hong Kong, Macao, and Taiwan being part of China according to public international law and the potential for the People's Republic of China (PRC) to have its own economic explosion onto the world's economic stage, the PRC could take the lead in coming to terms with the myriad and subjective tools currently used by the jurists of the world to decide conflicts of law." The following was printed in the first full paragraph on page 446: "But it is also apparent that the party autonomy principle and the methods used to assert it are recognized in theory if not always in adopted law in China." It should have read: "It is apparent that the party autonomy principle and the methods concerned are recognized and adopted in China." The following was printed toward the end of the first paragraph on page 449: "Chinese jurists should work out the descending-order-of-importance list of contracts in harmony with these international conventions while continuing to use China's laws and public policy for reference. This combination will improve the predictability, certainty, serviceability, flexibility and feasibility of choice of law." It should have read: "Chinese jurists should work out the descending-order-of-importance list of the contracts using the international conventions, China's laws and public interests for various kinds of contracts for reference, which will improve predictability, certainty, serviceability, flexibility and feasibility of choice of law." In the middle of page 450 the following was printed: "Ifboth parties do not live in the same place, the contract is governed by the law of contracts." It should have read: "If both parties do not live in the same place, the law of the place of contracting is applied to the contract." The following was printed in the first full paragraph of page 457: "Each point is given a value according to its importance related to the choice of lawissue with the country who has the most points being designated as the source of the proper law for the contract." It should have read: "Each point is given a value according to its importance related to the choice of law issue, whichever country's law gets more points is the proper law of the contract." The following was printed at the bottom of page 458: "We are willing to absorb all the good legislation, judicial practice, and approaches from any other country in the world to build a law-governing China in the near future." It should have read: "We are willing to absorb all the good legislation, judicial practice, and approaches from any other country in the world to build an even better law- governing China in the near future." In the following paragraph on page 458, the following was printed: "But this is not to say that the near future will be easy, especially when Hong Kong, Macao, and later Taiwan come back into a close economic relationship with the People's Republic of China. Soon the PRC will face more complex problems in international private law than even the U.S., as three legal systems (civil, common, and socialist) merge in the realm of international business transaction especially." It should have read: "But in the near future, when Hong Kong, Macao and later Taiwan come back to China, the People's Republic of China will face more complex problems in international private law than even the U.S., as three legal systems (civil, common, and socialist) merge in the realm of international business transaction especially." The Board sincerely regrets these errors resulting in alternate viewpoints to the authors. We apologize to all those affected by these errors. A COMPARATIVE ANALYSIS OF THE INFLUENCE OF LEGISLATIVE HISTORY ON JUDICIAL DECISION-MAKING AND LEGISLATION Robert G. Vaughn* I. INTRODUCTION Recent Supreme Court opinions often attack the use of legislative history in the interpretation of statutes.' A group of justices, including Justices Scalia, Kennedy, and Thomas, regularly advocate a "plain- meaning" interpretation of statutes.2 These justices and other critics propose that the use of legislative history be abandoned or that its relevance be dramatically reduced through the rigorous application of interpretive techniques that rely on the language of statutory provisions.' These attacks coincide with the Supreme Court's declining use of legislative history in the * A. Allen King Scholar and Professor of Law, Washington College of Law of American University. The author acknowledges David Fenichel for his research assistance. He also thanks his colleagues Candace Kovacic-Fleischer, Egon Guttman, Thomas Sargentich, and Joan Williams for their comments on previous drafts of this article. 1. E.g., Darby v. Cisneros, 509 U.S. 137, 147 (1993) (Chief Justice Rehnquist and Justices Scalia and Thomas refuse to subscribe to portion of majority opinion discussing the implications of legislative history); Public Citizen v. Department of Justice, 491 U.S. 440, 470 (1989) (Kennedy, J., concurring) (arguing that the plain language of the statute should control unless the result is "absurd" even if it would lead to a constitutional issue); Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia, J., concurring in part) (commonly used legislative history is unreliable evidence of what members of Congress had in mind when they voted); Pennsylvania v. Union Gas Co., 491 U.S. 1, 30 (1989) (Rehnquist, C.J., Scalia, O'Connor & Kennedy, JJ., dissenting in part) (rejecting the use of legislative history); United States v. Stuart, 489 U.S. 353, 371-77 (1989) (Scalia, J., concurring) (arguing that words of the treaty text are controlling). 2. Plain-meaning interpretation relies on the meaning of the words of the statute without the use, or with only limited use, of the legislative history. The appellation "plain-meaning" implies that the language will be given the meaning that is clear, common, or plain. Judge Wald refers to advocates of plain-meaning interpretation as "textualists" and to supporters of the use of legislative history as the "contextualists." Patricia M. Wald, The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the United States Supreme Court, 39 AM.