As EW worked on its latest story on the issue of rape on the University of Oregon campus, HBO's Vice contacted us for permission to use our cover image from last year's story on sexual assault, created by our own Trask Bedortha. If you watch the intro sequence you will see EW up there with Time Magazine.
HBO's preview doesn't show the cover but it gives you the gist of this important issue that is not going away.
The EW story, Rape U, delves into several sexual assault cases on the University of Oregon campus and what is — or is not — being done; Vice mentions the UO only in passing.
Our May 28 story, "Dragged Through the Mud," shows the UO still has far to go, and reveals the UO has not once, but at least twice taken a student's mental health counseling records.
The Oregonian picked up that aspect of the story, and today Oregon Gov. Kate Brown signed into law a bill that would prevent the release of those records in the future.
What better way to spend a day of Eugene Beer Week than a little botanical exploration? It was a great hike last night for Beers Made by Walking Eugene with the McKenzie River Trust and Claim 52, Falling Sky, and Viking Braggot at the Berggren Watershed Conservation Area to talk about some of our Native and non native plants that could be purposed for making inventive ales.
Here are some of the photos we took for the cover and this weeks story on the LCC ReFashion lab.
Read the story here: http://www.eugeneweekly.com/20150604/lead-story/pretty-paper
Photos:Trask Bedortha Dress: Ariana Schwartz • Hair: Gwynne McLaughlin, Studio Mantra • Make up art: Marisa Shute • Models: Katrina Jones, Ericka Weist, Savannah Weatherford
This new video from Community Supported Shelters features people in the Eugene area who are homeless in "Safe Spots." Paula Goodbar of the CSS board produced the video. Click on the link above for the full video.
The weeks leading up to Sasquatch! Music Festival, all I could focus on was the chaos that would ensue Memorial Day weekend, May 22-25.
Alongside countless new faces and friends, I camped five nights in The Gorge. I forgot my pillows. I forgot my blankets. I even forgot my water bottle. It was the best.
Over the course of the weekend, I’d hear a cacophony of sounds blend into one — ranging from laughter on the hill to Robert Plant’s ageless voice.
Courtesy of Eugene Weekly’s access to the festival, listed below are the most distinct moments captured from Sasquatch — as well as why each memory will stick with us for such a long time. All photos by Brinkley Capriola.
Most Inspirational Quote All Weekend: Mother Mother (Friday @ Bigfoot)
“Life is a crazy thing. When it’s bad, it’s funny. And when it’s good, it’s amazing,” Canadian rocker Ryan Guldemond said on stage. “Right now, it’s amazing. Savor it.” Guldemond looked like an angsty antagonist out of some ‘90s indie flick, especially with his blonde mohawk. But festivalgoers were glad to hear his positivity, as well as the hit single “Monkey Tree”, which showcased his impressive vocal range.
Best Matching Costumes from Festival Goers: Banana Suits (All Day, Every Day)
Most Weed Ever Thrown Into A Crowd Ever: Action Bronson (Friday @ Bigfoot)
When Bronson entered, he blasted Albanian music. Promptly, however, he told sound to “cut that shit out” before rapping over more traditional hip-hop beats. He then called The Gorge “picturesque” and brought Big Body Bes and Mayhem on stage as guest emcees.
Later, he took pictures in the crowd to keep everyone hyped.
Halfway through his set, the New York rapper decided there “wasn’t enough second-hand smoke” in the crowd — so he gleefully threw about a thousand dollars worth of recently-purchased, legal Washington weed into the crowd: Mason jars full of cannabis, grams of oil, edibles and all sorts of other legalized delights.
I may or may not have even ended up with a gram of Bronson’s blueberry cheesecake oil.
Bronson promised “the best vocals of my entire career” during sunset, and then he brought the storm as rain came crashing down during his show. He performed two encores, including one eating a plate of chicken on stage. Shout out to Queens, and shout out to his cooking TV show on VICE, F*ck, That’s Delicious, for getting picked up on cable.
Band I Didn’t Start Digging Until After The Festival: Little Dragon (Friday @ Bigfoot)
This band, formed in Sweden way back in 1996 and fronted by Yukimi Nagano, is made up of a bunch of badasses.
Biggest DJ Set of the Weekend: Flume (Friday @ Bigfoot)
This was a huge party, though it was unfortunate for Portland rockers Sleater-Kinney, whose crowd lacked size due to Flume’s massive college-aged fan base. Meanwhile, Australian DJ Flume proved with each remix why he’s regularly regarded the best producer in the game.
Biggest Celebrity I Got Hang Out With: Bear on Fire (Saturday @ Yeti)
This sextet, which sounds like a hybrid of My Morning Jacket and Band of Horses, met in high school. They first started playing in Christopher Mintz-Plasse’s San Fernando Valley backyard. If bassist Mintz-Plasse looks familiar, by the way, it’s probably because he also played McLovin in Superbad (2007).
Years after high school, Bear on Fire are still jamming together and were the first act of Day Two at Sasquatch. “I’ve been acting for eight years, and I feel very lucky to have had a career doing that,” Mintz-Plasse said when we caught up with him. “I feel very accomplished as an actor. I’ve done very exciting things. But I want that same feeling for music.”
Most Improved Reputation in Washington: Benjamin Booker (Saturday @ Sasquatch)
The 25-year-old New Orleans singer-songwriter may make more sense in the environment of a small club, but after an impressive afternoon showcase on the main stage, expect more name recognition as he continues his tour.
“It was weird. The last time we were in Seattle, the show was pretty rowdy and, like, a riot happened,” Booker tells us between puffs of his cigarette. “I didn’t know how it was going to be after that.”
Booker looks great on stage (and in pictures!) and the crowd loved his guitar solos and vocal texture. Plus, the Jimi Hendrix cover was pretty special. Check out his “A Take Away Show” to start your collection.
Best King Tuff Jacket In The Diarrhea Planet Mosh Pit: King Tuff (Saturday @ Yeti)
Cool show from both bands on the small stage. It was also awesome to see King Tuff’s Kyle Thomas rocking his iconic, sleeveless leather jacket in the crowd hours before his show.
Act Most Surprised To See Devoted Fan Base: Dilated Peoples (Saturday @ Bigfoot)
Favorite Performance of the Weekend: Sylvan Esso (Saturday @ Bigfoot)
When we met up with electro-pop duo Sylvan Esso, both singer Amelia Meath and producer Nick Sanborn had just arrived at The Gorge. “There aren’t very many gorges in North Carolina,” says Meath, who also performed at Sasquatch in 2012 as a backup singer for mainstage headliner Feist.
When Meath and Sanborn have time to write these days, it’s very collaborative and often in the same room. “We definitely make better music when she’s critiquing me and I’m critiquing her,” Sanborn explains. The duo says the more bass-driven, electronic tracks get the crowd going. But when asked if they keep their live performance in mind during their writing process, both quickly refute. “You don’t want it to become a touring thing,” Meath explains. “We’re not an act. We’re a band.”
When Meath opened the set, she asked if “everybody was ready to move together as one body” and the crowd quickly obliged. My personal favorite was “Wolf”, the song Meath says is written about seducing yourself in the mirror when you don’t feel you look most attractive.
Meath’s shoeless dance moves did not disappoint. She briefly covered Beyoncé and blended conversational banter with danceable vibes on stage. This is one of my favorite performances I’ll ever see, and many friends I brought now have a new favorite band.
Band That Sounds Most Like Original Recordings: Real Estate (Saturday @ Bigfoot)
Most Likely To Eat At Tacovore Before Show: Glass Animals (Sat. @ El Chupacabra)
Okay, maybe we cheated on this one. When we caught up with Glass Animals before their set, they told us they ate at Tacovore and went paint-balling in Eugene before their recent show at WOW Hall. “Eugene kind of blew my mind,” says Glass Animals singer Dave Bayley. “We all really liked it.”
Already Played Eugene Twice This Year: Odesza (Saturday @ El Chupacabra)
The Coolest Dude in America: Father John Misty (Saturday @ Bigfoot)
Joshua Tillman entered the weekend my favorite songwriter on the Sasquatch lineup; he left my favorite songwriter in the universe. Tillman absolutely stole the show Saturday. With his suave suit and smooth swagger, he exudes animalistic attraction with every single movement he performs. With such breathtaking and novelistic lyricism, it’s tough to find a more compelling or complex storyteller on this planet. Plus, the thrill we felt when he tossed his guitar into the crowd was unparalleled.
If there’s one thing evident from Father John Misty’s new album, it’s that Tillman is in love. Can you imagine such a complicated brain loving you? After watching this show, I feel like we’ve only scratched the surface.
Most Experienced Veterans: The Decemberists, Modest Mouse (Saturday @ Sasquatch)
Both bands have played Sasquatch four times each now. That’s a lot, but it’s nothing compared to Neko Case — who has played eight times. Fortunately, both The Decemberists and Modest Mouse put on impressive shows.
Much like last year’s headliner (OutKast), I noticed you forget how many hits Modest Mouse brags. Then the banjo and trumpet kick in, and suddenly everyone in the venue somehow knows every word to sing along. Tip of the hat to you, Isaac Brock.
Most Natural Fit For The Main Stage: Shakey Graves (Sunday @ Sasquatch)
Alejandro Rose-Garcia first became known as Shakey Graves when he and his friends ended up giving each other goofy Indian Guide names at the Old Settler’s Music Festival in 2007. Now, quite some time later, the project has taken the world by storm. His voice had the perfect cadence for the breathtaking views of the gorge behind him, and he rocked and rolled the afternoon crowd into oblivion. Shakey Graves offered a perfect fusion of folk, blues, country, rock and Americana. Those who came early were rewarded on Sunday.
Best British Feminist Rapper I’ve Ever Heard: Kate Tempest (Sunday @ Yeti)
Tempest is also a published playwright, novelist, poet and ridiculously impressive emcee. She offers a refreshing change of pace in a hip-hop climate dominated by misogynistic lyricism.
Biggest Surprise of the Festival: St. Paul and the Broken Bones (Sunday @ Bigfoot)
These dudes from Alabama absolutely destroyed up there. Paul Janeway, physically speaking, is one of the last people you’d ever expect to boast such a beautiful voice. But, boy-oh-boy, can this man croon. The ambitious covers of Sam Cooke and Otis Redding were festival highlights, as were Janeway’s dance moves and gold dance shoes — the crowd loved every minute.
Biggest Rockstar of Sasquatch 2015: St. Vincent (Sunday @ Sasquatch)
My first experience at Sasquatch! Music Festival was in 2012, when Annie Clark from St. Vincent stole my heart. She hasn’t yet given it back, and made that even more evident on Sunday with an electrifying performance. And, of course, any St. Vincent show is incomplete without her memorable crowd-surfing.
Best Public Service Announcement of the Festival: Jenny Lewis (Sunday @ Sasquatch)
“If you’ve seen a giant stuffed panda at the campsite, it’s gone missing and we’d like it back.”
Most Heartbreakingly Gorgeous Show: Jose Gonzalez (Sunday @ Bigfoot)
When we met, Swedish singer-songwriter Jose Gonzalez told me he had flown in from Sweden earlier that day and was greeted with quite an overwhelming sight at The Gorge. “For some reason, I was always thinking of big forests,” Gonzalez says. “So I was a bit surprised when we arrived today. It’s really amazing and super beautiful.”
It’s hard not to get choked up just thinking about how the sky looked during “Heartbeats” (a cover originally written by The Knife) on Sunday. Before the song, Gonzalez tuned his guitar and asked the crowd to turn around and watch “the most beautiful sky” he’d ever seen in his entire life. This was beyond a religious or spiritual experience; the show felt similar to that feeling you had when you fell in love the first time. Or, as one friend explained, it made you want to write poetry — even if you’ve never written poetry before.
For a sample of his sound, here is a video he made with the same filmmaker who produced his documentary.
Most Unexpected Dance Party: James Blake (Sunday @ Bigfoot)
Here’s what I love about electronic music producer James Blake: When you hear his music on the record, it sounds melancholy and emotional. But given his ridiculous musical prowess on the keyboard and his impressive looping skills, Blake is able to adjust the tempo on just about any of his songs to fit a small venue or a late-night festival slot. The bass was thumping, so people were grooving all night long. My favorites were “Overgrown” and “Retrograde” — though just about all sounded great, with enough modification to keep the energy alive.
Most Casual Experience Seeing Led Zeppelin: Robert Plant (Sunday @ Sasquatch)
I don’t think I’ve properly process the fact that I watched the lead singer of Led Zeppelin perform over the weekend until I finished typing this sentence. His voice is immaculate, all things considered.
Best Rainy Day Vibes: Courtney Barnett (Monday @ Sasquatch)
I ended up seeing the brilliant Courtney Barnett alone on the main lawn right when it started to rain Monday, and it couldn’t have worked out any better. With her clever wordplay and sweet demeanor, even the most coy smile gave the crowd a certain joy. I was especially pleased when she played “Depreston,” my favorite track on her new LP.
Most Unexpected Special Guest: Ryan Adams at Natalie Prass (Monday @ Yeti)
Best Comedy Set of the Festival: Nick Thune (Monday @ El Chupacabra)
I think the running joke of the festival was how many comedians canceled: First, SNL’s Pete Davidson canceled. Next, it was the Lucas Bros — who were actually there to replace Davidson. Fortunately, the comedy tent still managed a diverse lineup, both demographically and in style.
Plus, the comedy tent serves as a great place to beat the sun and relax. Thune’s bit about accidentally feeding a pot brownie to his dog (who has been sober for a full year now) made my sides split in half. Good work, Thune.
Most Kendrick Lamar Samples Not in Kendrick Lamar Set: Ab-Soul (Monday @ Bigfoot)
It’s almost impressive how often Ab-Soul has worked with K-Dot, and how much of his music collection has features from his Top Dawg Entertainment label mate. I somehow managed to end up shooting this show from the photo barricade (wearing a bucket hat and a tank top) while using a disposable camera. I’m ridiculously excited to develop this absurd roll of film.
Most “Bucket Hats” In A Concentrated Place: Schoolboy Q (Monday @ Sasquatch)
If Schoolboy Q has contributed one thing to the fashion world, it’s the sudden (yet extreme) popularity of his bucket hat. He played his hits, and if you’ve ever been to a campus bar in Eugene you knew way more of his songs than you thought you did. He also did his joint track with Kendrick Lamar (“Blessed”), which was a festival highlight. I didn’t like his lack of remorse for skipping Sasquatch 2013, but I’m glad he thanked the crowd for helping pay for his daughter’s schooling.
Best Cover of Spice Girls/Hardest Name To Pronounce: MØ (Monday @ Bigfoot)
If you asked me the name of this young Danish star, I wouldn’t know what to tell you. But she caught the Bigfoot stage by surprise with an incredibly energetic, enjoyable performance on the last day. Plus: I send major kudos to her for completely nailing the electrifying Spice Girls cover.
Most Played Artist Since I’ve Come Home: Alvvays (Monday @ Yeti)
Most Turned Up Performance of Festival: Run The Jewels (Monday @ Bigfoot)
I did not expect to groove so hard this late at night. El-P was sipping a bottle of Tito’s the whole time, and Killer Mike is (literally) huge. Great show, 10/10. RUN THE JEWELS FAST.
Weirdest/Dopest Moment: Kendrick Lamar (Monday @ Sasquatch)
In his first performance since dropping his new album, Lamar only stuck to performing hits. While his live instrumentation (guitar, drums, etc.) was awesome to behold, the actual set list suffered by his decision to play only one song from To Pimp A Butterfly (2015) and not bring out label mates Ab-Soul and Schoolboy Q — both of whom were at the festival anyway.
Lamar did, however, bring out young fans Louis and Peyton (back to back) from the front row to spit verses from “M.A.A.D. City” with him. While it was frustrating to watch that song for 25 minutes, it was awesome to see both fans experience early life highlights. Both knew every word, though Peyton’s verse led to a moment similar to this kid at Coachella when she let a certain word slip while rapping in front of tens of thousands of people. It was a good show, although he ended ten minutes before his set time was scheduled to close.
Best Remix of the Festival: The Glitch Mob (Monday @ El Chupacabra)
When we checked in with these electronic music producers, they told us Sasquatch was one of their first festivals in 2011. “We always talk about Sasquatch,” says Glitch Mob producer Justin Boreta. “It’s one of our favorite places to play in the world.”
When Glitch Mob came on stage to close out the dance tent, festivalgoers got to hear a particularly unique rendition of “Seven Nation Army” by The White Stripes. Their stage setup was also dominant. “We have a big, custom electronic instrument that we play called The Blade,” Boreta says. “It has touch screens and electronic drums. It’s a big space ship that makes sounds and shoots aliens.”
Best Weekend of My Life: Sasquatch 2015 (All Weekend @ The Gorge)
From start to finish, I’ve never felt more blessed. The Gorge induces a surreal state and I’ve never felt luckier to surround myself with such talent and love.
Friday was bloody for some smaller papers in Oregon last week.
EW hears through the grapevine that Lee Enterprises, owner of the Corvallis Gazette-Times and Albany Democrat-Herald cut City Editor Theresa Novak and Arts Editor Sarah Payne from staff at the Gazette-Times May 29.
Also laid off were Albany Democrat-Herald's sports editor Les Gehrett and two staffers at the Lebanon Express, according to a tip EW recieved.
Earlier in May, Lee reported lower ad revenue but higher digital and subscription revenue. Website Motley Fool reported in 2014 that Lee "has been in downsizing mode since its bankruptcy filing in late 2011."
In 2012 Warren Buffet's Berkshire Hathaway bought $85 million of loans from Goldman Sachs and 4 percent stake in the company, according to the Wall Street Journal. That gave hope to many that investors would start supporting newspapers.
EW was hearing speculation that Lee plans to merge the G-T and D-H but Jeff Precourt, publisher of the Mid-Valley Media Group, which includes the Democrat-Herald and Gazette-Times, tells us that the D-H and G-T "have been owned by the same parent company, Lee Enterprises, for years. The papers have not merged during that time and there are no plans to do so." He continues, "Regardles of any staffing changes, we remain committed to serving our readers in the Mid-Valley."
So, what's going to happen to Oregon's much-needed daily papers? The R-G's weekend apologia from Tony Baker that kicked off with "When did change become a dirty word?" doesn't fill us with confidence as the paper brings N. Christian Anderson in from The Oregonian, but the need for daily local news isn't going away.
Towns need newsgatherers and watchdogs. Support your local papers.
Jenny Lewis cruised into town on a rainbow Tuesday night, and she left a pot of gold. For a weeknight performance on the same night that Shakey Graves performed at McDonald Theatre, the WOW Hall was packed.
Alt-country songstress Nikki Lane opened. Afterward, the stage was transformed into Lewis’ playground with the Monty Python-esque rainbow imagery from her 2014 album The Voyager.
Lewis played a good chunk of the new album, but also wooed the crowd with some old Rilo Kiley favorites like “More Adventurous,” “Portion for Foxes” and “With Arms Outstretched.”
She also threw little bouquets of flowers to the crowd and encouraged one fan to kiss her on the cheek.
For fans old and new, it was a magical night.
Lewis will continue to zig zag in and out of the PNW this summer, with stops in Washington in August and a gig at Portland’s Crystal Ballroom Aug. 16. She’s also joined the lineup for Mumford and Sons’ festival franchise at the Walla Walla, Washington, stop Aug. 14-15.
The morning after the show, Lewis’ publicist sent EW her latest music video for “She’s Not Me,” featuring Vanessa Bayer, Feist, Fred Armisen and Zosia Mamet and playfully mocking her childhood stardom. Check it out here wkly.ws/20w.
All photos by Dmitri von Klein.
We celebrate our military and war movies are super popular. Here's a different perspective.
Interesting anonymous commentary on the Zero Hedge website:
As the student loan bubble steams along towards the $1.5 trillion mark, pundits, researchers, and even (gasp) ratings agencies are starting to sound the alarm. While everyone is (as usual), around three years behind when it comes to admitting what’s been outlined extensively in these pages, we’re at least glad to see that the world is waking up to the fact that i) $1.3 trillion is a lot of money, ii) delinquency rates are far higher than the headline figures suggest, iii) students are never, repeat never, going to repay all of this, and iv) it is taxpayers who will eventually foot the bill.
To the latter point there, the calls for across-the-board debt “forgiveness” have already started and even if they hadn’t, and even if The White House weren’t looking at ways to make the discharge of student debt “more efficient” in bankruptcy, there are a number of reasons to believe that when it’s all said and done, taxpayers will be on the hook at least for hundreds of millions and more probably for hundreds of billions. Consider for instance that the cost of closing just one for-profit college could well run more than $200 million in federal loan forgiveness. Then there’s IBR (that’s “Income Based Repayment") in which borrowers whose disposable income isn’t deemed sufficient when it comes to making monthly payments have the remainder of their loan forgiven after 25 years. There’s literally no way to know what the cost to taxpayers will ultimately be from IBR plans, but what we do know is that an increase in the number of borrowers opting for some kind of IBR plan is one reason why Moody’s thinks some $3 billion in student loan-backed paper may be at risk for default.
So against this backdrop, America needs a plan, because as we’re fond of reminding people, one person’s liability is another person’s asset, meaning debt is never really “cancelled”, it’s just written off at some else’s expense. Ideally, opportunities in the job market and a robust economy would allow new graduates to obtain high-paying, full-time jobs which would in turn allow them to pay down their loans, but since that isn’t going to happen any time soon, we’re open to suggestions.
Fortunately, Democratic Presidential candidate Bernie Sanders has a plan that will ensure future generations of taxpayers aren’t stuck paying for their parents' college degrees: simply tax investors so the entire country can go to school for free.
Democratic presidential candidate Bernie Sanders wants to take from the rich in order to make public college tuition-free for everyone else.
On Tuesday, the Vermont senator will hold a press conference in the nation's capital at which he will introduce a plan to use a so-called Robin Hood tax on stock transactions to fund tuition at four-year public colleges and universities.
Sanders' bill sets a 50-cent tax on every "$100 of stock trades on stock sales, and lesser amounts on transactions involving bonds, derivatives, and other financial instruments," the group Robin Hood Tax on Wall Street said Monday in a press release.
"The Robin Hood tax would also slow the growth of automated high frequency trading, which makes the stock market more dangerous," the press release stated. "A small tax would make risky HFT unprofitable, and help reduce the excess speculation on commodities like food and gas that drives up prices, which will protect the economy from computer-generated collapses and market manipulation."
Sanders, who is the only candidate so far to mount a formal primary challenge to Hillary Clinton, argues that making college tuition-free will help America compete in the global marketplace.
"We live in a highly competitive global economy and, if our economy is to be strong, we need the best-educated work force in the world," he said in a press release on Sunday. "That will not happen if, every year, hundreds of thousands of bright young people cannot afford to go to college, and if millions more leave school deeply in debt."
There you go. Problem solved. We’ll leave it to readers to judge what kind of reception that plan is likely to get from GOP lawmakers, but we will venture to propose an alternative: make market rigging algos fund the education of the nation’s best and brightest by taxing all canceled orders. Then again, that plan would only generate revenue for one day because it would put the HFT crowd out of business overnight.
Below is a statement from Eugene Water& Electric Board General Manager Roger Gray today:
The University of Oregon Foundation announced on Tuesday, May 19, that it was ending negotiations with Eugene Water & Electric Board for purchase of EWEB’s vacant riverfront property.
We are disappointed with the Foundation’s decision, although we recognize this decision was made with great care. However, we believe the property still holds enormous potential for the community to create a world-class, vibrant, mixed-use development.
In the past six months, we’ve made significant progress with a community-supported vision for redeveloping of the riverfront property, working through a number of challenges that will put us in a better position as we move forward from here.
We remain optimistic about the future of this property and how it can transform our downtown riverfront and create value for our customers and the greater community. We at EWEB appreciate the partnership with the City of Eugene and will continue to work with the city to honor the community’s vision for a river district.
We will need to consult with our elected commissioners on our next steps; there are numerous options to consider and we are committed to making sure momentum carries forward for this once in a lifetime opportunity.
Rep. Peter DeFazio wrote a letter to the editor published May 9 that talked about problems with the proposed Trans-Pacific Partnership. In that letter he referenced a letter sent Congress last week from legal experts. Here is the text of that letter:
Dear Majority Leader McConnell, Minority Leader Reid, Speaker Boehner, and Minority Leader Pelosi:
We write out of grave concern about a document we have not been able to see. Although it has not been made available publicly, we understand that the Trans-Pacific Partnership (TPP) trade agreement currently being negotiated includes Investor-State Dispute Settlement (ISDS) provisions. ISDS allows foreign investors—and only foreign investors—to avoid the courts and instead to argue to a special, private tribunal that they believe certain government actions diminish the value of their investments.
Courts are central institutions in the rule of law. Americans have much to be proud of in the evolution of our court system, which has evolved over the centuries and now provides equal access for all persons. Courts enable the public to observe the processes of development of law and to watch impartial and accountable decision-makers render judgments.
We write because of our concern that what we know about ISDS does not match what courts can provide. Those advocating using this alternative in lieu of our court system bear the burden of demonstrating why such an exit is necessary, and how the alternate system will safeguard the ideals enshrined in our courts. Thus far, the proponents of ISDS have failed to meet that burden. Therefore, before any ISDS provisions are included in the TPP or any future agreements, including the Transatlantic Trade and Investment Partnership (TTIP), their content should be disclosed and their purposes vetted in public so that debate can be had about whether and if such provisions should be part of proposed treaties. Below, we detail the ways in which ISDS departs from the justice opportunities that U.S. courts provide.
Our legal system rests on the conviction that every individual, regardless of wealth or power, has an equal right to bring a case to court. To protect and uphold the rule of law, our ideals of fairness and justice must apply in all situations and equally to everyone. ISDS, in contrast, is a system built on differential access. ISDS provides a separate legal system available only to certain investors who are authorized to exit the American legal system. Only foreign investors may bring claims under ISDS provisions. This option is not offered to nations, domestic investors, or civil society groups alleging violations of treaty obligations. Under ISDS regimes, foreign investors alone are granted legal rights unavailable to others – freed from the rulings and procedures of domestic courts.
ISDS also risks undermining democratic norms because laws and regulations enacted by democratically-elected officials are put at risk in a process insulated from democratic input. Equal application of the law is another critically important hallmark of our legal system—one that is secured through the orderly development of law. Court decisions are subject to appeal, ensuring that conflicting lower court decisions are resolved by a higher authority. Judges also must follow legal precedent. The goal is uniform application of the law regardless of which judge or court hears a case. This law development allows people, entities, and nations alike to order their behavior according to well-established legal principles.
In contrast, ISDS does not build in the development of the law. An ISDS arbitral panel’s decision cannot be appealed to a court. The ISDS provisions of which we are aware provide only limited— private—review through a process called annulment that does not permit decisions to be set aside based even on a ―manifest error of law.‖1 Moreover, ISDS arbitrators, like other arbitrators, do not make law because their decisions have no precedential value, and ISDS arbitrators in turn are not obliged to follow precedent in reaching their own decisions.
None of the hallmarks of our court system would be possible without a fair and independent judiciary. Federal judges take an oath to uphold the Constitution and are nominated and confirmed by our democratically elected representatives. State judges likewise commit themselves to upholding the constitutional order. In contrast, ISDS arbitrators are not public servants but private arbitrators. In many cases, there is a revolving door between serving on ISDS arbitration panels and representing corporations bringing ISDS claims. Yet, although such a situation would seem to call for more—not less—oversight and accountability, ISDS arbitrators’ decisions are functionally unreviewable.
As noted at the outset, we have not been able to read the terms of the proposed ISDS chapters for the upcoming TPP and TTIP treaties. But what we know from the past gives us many grounds for concern. During the past few years, foreign investors have used ISDS to challenge a broad range of policies aimed at protecting the environment, improving public health and safety, and regulating industry. These challenges have been around the world, including under trade agreements to which the United States is a party. The publicly available information about these challenges raises serious questions as to whether the United States should be entering into more ISDS agreements with a broad array of nations.
Pharmaceutical giant Eli Lilly’s pending ISDS proceedings against Canada provide an example of how corporations have used ISDS to challenge a nation’s laws outside the courtroom. After a Canadian court invalidated one of Lilly’s patents, the company initiated ISDS proceedings against Canada under Chapter 11 of the North American Free Trade Agreement (NAFTA).2 In seeking $500 million (Canadian), Lilly has challenged as violative of NAFTA the standard the nation uses for granting patents.
Although ISDS tribunals are not empowered to order injunctive relief, the threat and expense of ISDS proceedings have forced nations to abandon important public policies. In the third ISDS proceeding brought under NAFTA, Ethyl Corporation brought an ISDS proceeding against Canada for $251 million for implementing a ban on a toxic gasoline additive. The proceeding took place not in a court, but before an arbitration panel of the International Centre for the Settlement of Investment Disputes (ICSID). After the arbitration panel rejected Canada’s argument that Ethyl lacked standing to bring the challenge, Canada settled the suit for $13 million. Moreover, Canada lifted the ban on the toxic additive as part of the settlement.3
1 Impregilo S.P.A. v Argentine Republic, ICSID Case No. ARB/07/17 (Annulment Proceeding), Jan. 24, 2014, at ¶ 132. http://www.italaw.com/sites/default/files/case-documents/italaw3044.pdf (―[T]here is a difference between a failure to apply the proper law and the misapplication of the applicable law, and that the latter does not constitute grounds for annulment, even if it is a ‘manifest error of law’ ...‖) (emphasis added).
2 Eli Lilly and Company v. The Government of Canada, Notice of Intent to Submit a Claim to Arbitration under NAFTA (Nov. 7, 2012). Available at:http://italaw.com/sites/default/files/case-documents/italaw1172.pdf. 3 Michelle Sforza & Mark Vallianatos, ―Ethyl Corporation v.s. Government of Canada: Now Investors Can Use NAFTA to Challenge Environmental Safeguards,‖available at http://www.citizen.org/trade/article_redirect.cfm?ID=6221.
It is particularly noteworthy that the three NAFTA countries are each in the top 11 most- challenged countries under the ISDS system. This high rate of challenge in our view has little to do with a rule of law deficit in the U.S. and Canada. Instead, it represents investors taking advantage of easy access to a special legal right available only to them in an alternate legal system.
ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve.
Proponents of ISDS have failed to explain why our legal system is inadequate to the task. For the reasons cited above, we urge you to uphold the best ideals of our legal system and ensure ISDS is excluded from upcoming trade agreements.
Judith Resnik , Arthur Liman Professor of Law, Yale Law School
Cruz Reynoso , Professor of Law Emeritus, University of California, Davis School of Law Former Associate Justice of the California Supreme Court
Honorable H. Lee Sarokin, Former United States Circuit Judge of the United States Court of Appeals for the Third Circuit
Joseph E. Stiglitz , University Professor, Columbia University
Laurence H. Tribe , Carl M. Loeb University Professor, Harvard Law School
cc: Ambassador Froman and Chairs & Ranking Members of Finance & Ways & Means Committees
Please note: Organizational affiliation for all signatories is included for identification purposes only; individuals represent only themselves, not the institutions where they are teaching or other organizations in which they are active.