- SCOTUS takes up oral argument Monday on one of this year’s cases on uninjured plaintiff standing [Anne Friedman/DLA Piper, Richard Samp/WLF on Spokeo, Inc., v. Robins, more from Theodore Olson/Lucas Townsend, WLF on uninjured-plaintiff class actions]
- Time magazine asked law professors to pick best and worst SCOTUS rulings. Much consequentialism ensued [Orin Kerr, Ilya Somin]
- Fisher v. University of Texas, the affirmative action case, returns to the high court [Alison Somin, Federalist Society blog]
- CBIA vs San Jose case could upend some of zoning law [Ilya Shapiro and Trevor Burrus, Cato, via @nickzaiac]
- Rebuff to DoJ: “Supreme Court denies cert in US v. Newman insider trading tipping case” [Prof. Bainbridge, more, Peter Van Doren/Cato]
- Will Court agree to revisit Alien Tort Statute in Ivory Coast-related case of Nestle v. Doe? [WLF]
- Can defendant moot a class action by fully satisfying claim of named plaintiff? [Daniel Fisher on Campbell-Ewald v. Gomez] “Gomez Is Not the Slam Dunk You Think It Is” [Andrew Trask]
Terry Collingsworth, a well-known attorney specializing in Alien Tort cases against defendants like Chiquita, Coca-Cola, Dole, and Chevron over alleged overseas misconduct, is enmeshed in a bitter fight with the Alabama-based, privately held Drummond Coal empire in which heated allegations are flying in both directions [Daniel Fisher, Forbes]
- Boston’s North End, the home-as-one’s-castle doctrine, and how we got the Fourth Amendment [Ted Widmer, Globe]
- NYT sniffs at Origination Clause as basis for ObamaCare challenge, but many framers of Constitution saw it as vital [Trevor Burrus, Forbes; Ilya Shapiro; four years ago on another Origination Clause episode]
- Justice Scalia, concurring in Schuette, knocks the fabled Carolene Products footnote down a peg [Michael Schearer]
- SCOTUS lets stand New Jersey’s very extreme gun control law. Was it serious about reviving the Second Amendment? [Ilya Shapiro]
- Didn’t link this earlier: Kenneth Anderson discusses his excellent Cato Supreme Court Review article on Kiobel, the Alien Tort case [Opinio Juris]
- Kurt Lash guestblogs on 14th Amendment privileges and immunities clause [Volokh Conspiracy]
- Supreme Court reviving law/equity distinction? (Hope so.) [Samuel Bray, SSRN via Solum]
- U.N. Convention on the Rights of Persons with Disabilities remains a bad, bad, bad, idea, but Senate Foreign Relations Committee has now scheduled hearings for Nov. 5 and Nov. 12 in effort to push it through;
- Proliferation of human rights treaties not necessarily good for, well, human rights [Jacob Mchangana et al. via Sullivan “Dish”; cf. David Kopel, NYT “Room for Debate” last year]
- Claim: Urban planning schemes are a human right [Wikipedia on “Right to the City”] U.N. Special Rapporteur calls for legally enforceable international right to food [UN]
- CRPD cited in Spain by group campaigning against “disability-selective abortion” [Pablo de Lora, Harvard “Bill of Health”]
- Some forms of national sovereignty OK after all? Declaration on the Rights of Indigenous Peoples (DRIP) cited in Indian tribal claims [Kevin Zeese and Margaret Flowers, Truthout] “Lakota to file UN Genocide Charges Against US, South Dakota” [Jeff Armstrong, CounterPunch]
- “N.Y. state appeals ruling opens courthouse door to foreign victims” [Alison Frankel] First post-Kiobel ATS case smacks down plaintiffs on South Africa claims [Julian Ku/Opinio Juris, Fed Soc Blog]
- Panel from Cato’s Constitution Day includes Kenneth Anderson discussing his excellent article on Kiobel in the Cato Supreme Court Review; also includes presentations by Ilya Somin on property rights and Andrew Grossman on City of Arlington, with Roger Pilon moderating [Cato video, podcast]
- U.N. Committee on the Elimination of Racial Discrimination to Germany: to comply with your treaty obligations, you must punish this insensitive discussion of immigrants [Volokh, Bader]
- California’s Armenian genocide law entrenches on federal foreign affairs power [Ku/OJ]
- Heritage Foundation urges feds to overrule state marijuana laws on grounds of international treaty obligations [via @LucyStag]
- UN conventions ban torture, but that can bear meanings very different than in common parlance [Wesley Smith, Weekly Standard]
- Kiobel-aftermath marathon at Opinio Juris: Spiro, Lederman, Ku, Bellinger and Kontorovich, Alford, Phillips, Moyn, earlier here, here. More: Eugene Kontorovich podcast, Federalist Society.
- Underreported: how international vote buying influences outcomes in UN, similar bodies [Natalie Lockwood/OJ]
- Adding a Protocol: U.N. human rights chief “today welcomed the birth of a new mechanism which will empower individuals to seek out justice when their rights to food, adequate housing, education or health are violated.” [UN]
In my offhand judgment, Justice Breyer’s argument about the ATS and its “fit” with the presumption [against extraterritoriality] has force. (The Chief has an answer, but it’s a very close call.) What this is actually about, though, is a monitoring problem; and on that, the Chief is right.
The ATS has become a playpen for a cabal of international law enthusiasts and plaintiffs’ lawyers. Couple the former’s wild-eyed global aspirations with the latter’s eagerness to drag corporations through our one-of-a-kind tort system, and it’s Katy, bar the door. The Chief’s rule blocks all that: if it happened abroad, that’s it. Justice Breyer’s position, in contrast, would compel the Court to monitor all the places and institutions where this stuff gets out of hand: the Ninth Circuit; the wildest district courts in the country; the folks who are in charge of the Restatement of Foreign Relations; and the people who crank up “customary” international law (which becomes “customary” when someone at Yale Law School says it is, and the Swedish Minister of Foreign Affairs agrees). If some foreign employees of a U.S. company sue other employees of that company over tortious sexual harassment at the company’s foreign plants, has the defendants’ conduct “substantially and adversely affect[ed] an important American national interest,” that of serving as a beacon of sexual equality in the world? You tell me.
To ask the Supreme Court to keep an eye on this is to declare surrender. So it’s good that the Court has drawn a line. Whether it’ll hold, we’ll see.
This morning’s big Supreme Court decision in Kiobel v. Royal Dutch Petroleum was a huge win for good sense. While splitting 5-4 on reasoning, the nine justices unanimously rejected the lefty view of the Alien Tort Statute that had been popular on campus, in the foundation world, and so forth. Here’s my Cato take:
Just as the United States should not play policeman to the world, so our courts should not play tort-suit venue to the world. Today the U.S. Supreme Court unanimously and decisively buried the misguided, decades-long hope of some lawyers and academics that they could turn the Alien Tort Statute (ATS) into a wide-ranging method of hauling overseas damage claims into American courts. All nine Justices agreed with the Second Circuit that the statute does not grant jurisdiction for our courts to hear a controversy over alleged assistance in human rights violations outside the U.S. against non-U.S. plaintiffs by a non-U.S. business. A majority of five justices reiterated and relied on our law’s strong traditional presumption against extraterritoriality, that is to say, presumption against applying the law to actions that take place in other countries. While parting from this reasoning, four concurring justices nonetheless endorsed a view of ATS as applicable extraterritorially only to very extreme misconduct comparable to piracy, and also as sharply limited by considerations of comity with foreign sovereigns.
It is a good day for a realistic and modest sense of what United States courts of justice can successfully do, namely: do justice within the United States.
Notably, all nine Justices sidestepped the issue that had caused extensive angst among many popular commentators, namely whether the statute could be applied to corporations as distinct from natural persons. Other views: Ilya Shapiro, Cato (“an exceedingly complicated case with a relatively simple solution”); SCOTUSBlog; Julian Ku/Opinio Juris (“this means that the ATS wars over corporate liability are almost over…. A theory that the ATS can be justified in universal civil jurisdiction cases has been rejected, 9-0.”) and more (death of “universal civil jurisdiction” idea, and speculation that Breyer’s shift of ground to a narrower ATS rationale was an unsuccessful attempt to pick up Kennedy); Sarah Altschuller (reading opinions, “struck by amount of time that must have been dedicated to debate re: pirates and shipdecks”); Josh Blackman (getting all nine justices to agree on a personal jurisdiction question isn’t easy, but it happened here); Hans Bader; Roger Alford (ATS “as we know it is dead… [Kiobel] has destroyed an entire cottage industry”; transnational state-court torts and choice of law likely to rise in importance as replacement); Eugene Kontorovich (academics scoffed when “foreign-cubed” ATS lawsuits were called into question, yet all nine justices have now embraced that position); earlier here; Cato’s amicus brief. Disapproving reactions on the left from Alliance for Justice, Center for Constitutional Rights (which unsuccessfully invoked the ATS to sue bulldozer maker Caterpillar Tractor over the death of anti-Israel protester Rachel Corrie, a story mentioned in Schools for Misrule, which discusses law-school and foundation enthusiasm for the ATS), and Human Rights First. More on the recent ATS defense by Judge Pierre Leval, cited by Justice Breyer in his concurrence for the four liberals.
- Let’s hope not: is Kony case reconciling conservatives to International Criminal Court? [New Republic] Sea Shepherd case shows Alien Tort Statute can serve “conservative” as well as “liberal” ends [Eugene Kontorovich, earlier]
- “Why the U.S. Shouldn’t Sign On to Empty Human Rights Treaties” [Eric Posner, Slate, earlier]
- Or maybe non-empty? U.N. Convention on Rights of Persons with Disabilities said to require enactment of strong Europe-wide equivalent of ADA [Disability Law]
- A questionable free speech victory at the U.N. on defamation of religion [Jacob Mchangama]
- Tales of “independent” court reports that weren’t: “Chevron-Ecuador case expert switches sides” [SF Chron, December]
- New Kenneth Anderson book getting lots of recommendations: Living with the UN: American Responsibilities and International Order [Amazon]
- “Revive Letters of Marque and Reprisal to Launch Cyber-Attacks Against China?” [Julian Ku/OJ]
- Decline Medicare benefits, lose your Social Security? Tell it to SCOTUS [Trevor Burrus and Kathleen Hunker, Cato]
- “Castle” protections against official home intrusion aren’t forfeited just because you’re a renter [Ilya Shapiro and Sophie Cole, Cato]
- Was Hitler a pirate? Answer could shape SCOTUS Kiobel decision [Alison Frankel] Inside the effort to rein in the Alien Tort Statute [Reuters] Editorials urge limiting ATS [WaPo, WSJ] More: Bainbridge, Kenneth Anderson, roundtable at Opinio Juris, Ted Frank.
- Major takings case (Arkansas Game & Fish Commission v. U.S.) argued at SCOTUS [Ilya Somin, Damon Root, Federalist Society with Richard Epstein, Gideon Kanner] Court also decides to hear important regulatory takings case, St. Johns River Waste Management District v. Koontz [Somin]
- On the supposedly pro-business Supreme Court [Stephen Richer, Forbes; Ted Frank]
- Previews of the Court term [Adam Freedman, Point of Law, Federalist Society/C-SPAN, Above the Law]
- Are we nearing a “constitutional moment”? [Michael Greve with responses from William Galston and William Voegeli, Law and Liberty]
- Human rights roulette: Senate could take up UN disabled-rights treaty in September [Stefano Gennarini, Turtle Bay and Beyond; earlier]
- Intense opposition from gun rights community slows drive for U.N. small arms treaty [David Kopel, Steve Hayward/PowerLine, Krayewski/Reason, Opinio Juris]
- SEC moves on complex, costly conflict minerals rule [Bainbridge, more, earlier]
- Series of Eugene Volokh posts takes up proposals to restrict reception of foreign law, including Islamic law, in American courts [Volokh Conspiracy]
- U.N. human rights establishment urges Iceland to crack down on gender-stereotypical speech [Volokh]
- Welfare rights, the U.N.-system way [International Labour Organization]
- When may American courts hear suits over international law violations on foreign soil? Cato files amicus brief in Kiobel v. Royal Dutch [Shapiro] SCOTUSBlog symposium on Kiobel and future of Alien Tort Statute;
- Damir Marusic reviews Aryeh Neier’s book on international human rights [American Interest]