New SEC chairman Mary Jo White shows better sense about it than some newspaper editorialists that could be named [Louise Bennetts, Cato]
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Posts tagged as:
extraterritoriality
Gibson CEO Henry Juszkiewicz, WSJ, excerpted at PoliceMisconduct.net:
In America alone, there are over 4,000 federal criminal offenses. Under the Lacey Act, for instance, citizens and business owners also need to know – and predict how the U.S. federal government will interpret – the laws of nearly 200 other countries on the globe as well. Many business owners have inadvertently broken obscure and highly technical foreign laws, landing them in prison for things like importing lobster tails in plastic rather than cardboard packaging (the violation of that Honduran law earned one man an eight-year prison sentence). Cases like this make it clear that the justice system has strayed from its constitutional purpose like stopping the real bad guys from bringing harm.
Harvey Silverglate says that while Juszkiewicz is right as far as he goes, he’s seeing only part of the picture. Earlier on the Gibson raid and Lacey Act here, here, etc.
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In the case of Kiobel v. Royal Dutch Petroleum, scheduled for argument Tuesday, the Supreme Court will consider curbing the modern scope of the Alien Tort Statute, which asserts U.S. jurisdiction over various human rights controversies arising within the bounds of other countries. [Reuters, earlier] Considering that it amounts to the Law of the Hegemon, the Statute is oddly popular in some Left circles [Kenneth Anderson/Volokh] European governments (Germany, Great Britain, the Netherlands) have filed amicus briefs on the defense side [John Bellinger, Lawfare; more, WaPo]
More: The New York Times’s Room for Debate discussion includes a contribution by my Cato colleague Ilya Shapiro. And Point of Law is having a featured discussion on the case with David Weissbrodt of the University of Minnesota and Julian Ku of Hofstra.
Some expected that the big new SEC regulations on industrial users of tin, tungsten, tantalum and gold would mostly affect electronics and jewelry makers, but the actual net being cast is far wider. Manufacturers in general must investigate the supply chains of their products in order to comply with the disclosure requirements, no small matter at a firm like Kraft with 40,000 products and 100,000 suppliers. (Kraft found that the minerals may turn up in pouch packaging of juice products.) No wonder the SEC’s absurd initial estimates of a mere $70 million economy-wide compliance cost have given way to estimates a hundred times higher or more. In an echo of the infamous CPSIA statute, “the rule provides no de minimis exemption for trace amounts.” [Melissa Maleske, Inside Counsel, earlier here, here, and here] (& Bainbridge)
More: the Dodd-Frank conflict minerals provision and the Democratic Republic of the Congo [Marcia Narine, Conglomerate via Bainbridge]
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“Tulane Study Says SEC Estimate of Cost of Conflict Mineral Rules is 100x Too Low” — headline at Business Law Prof (via Prof. Bainbridge), describing a new calculation that the implementation of the complication Dodd-Frank provision will in fact cost American business upwards of $7 billion, not the $70 million the Securities and Exchange Commission optimistically foresaw. (Typo fixed now.) Earlier here, here (“devastating” effect on Congolese).
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“The House Judiciary Committee passed a bill yesterday that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act (CSA) — even if the planned activities are legal in the countries where they’re carried out.” [Balko, Somin]
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“…We’ll just do our business in London.”
Great WSJ article on the unending proliferation of federal crimes, with appearances by a family that ran into a law making it a felony to dig for arrowheads on federal land, Bobby Unser and his snowmobile-astray ordeal, and a man effectively ruined by the $860,000+ cost of successfully defending himself against a federal charge of violating Russian hunting regulations.
“Most people think criminal law is for bad people,” says Timothy Lynch of Cato Institute, a libertarian think tank. People don’t realize “they’re one misstep away from the nightmare of a federal indictment.”
More: from Tim Lynch, and (via PoL) Josh Blackman, William Anderson/Regulation mag.
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Someone must think there’s a big emergency, because Capitol Hill lawmakers are moving remarkably quickly on a partial overturn of the Supreme Court’s new 8-0 Morrison ruling, which was handed down less than two weeks ago. [Julian Ku, Opinio Juris] (& welcome Daniel Fisher, Forbes readers).
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“While there is no reason to believe that the United States has become the Barbary Coast for those perpetrating frauds on foreign securities markets,” wrote Justice Scalia for the Court, “some fear that it has become the Shangri-La of class-action litigators for lawyers representing those allegedly cheated in foreign securities markets.” [Mauro/NLJ] And hurray for the presumption against extraterritoriality [Ku/Opinio Juris]
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Not just anti-free-speech, but extraterritorial as well [Popehat]:
…Joseph Evers, one of the “owners” of Encyclopedia Dramatica, reveals that he got a threatening letter from the Australian Human Rights Commission, which based upon its logo may or may not be controlled by AT&T. The Human Rights Commission announces that it has gotten multiple complaints about Encyclopedia Dramatica’s Aborigine page, and that the page “constitutes racial hatred” and appears to Racial Discrimination Act of 1975 in that it constitutes an act “likely to offend, insult, intimidate or humiliate” another person based on their race. The Human Rights Commission also announces — rather triumphantly, I think — that it does not matter that Encyclopedia Dramatica is hosted and written in the United States, because Australian law, as reflected in Dow Jones v. Gutnik, treats web pages written and hosted elsewhere as if they were published in Australia, subjecting their authors and/or hosts to jurisdiction there.
Australian authorities have compiled a blacklist of sites that internet providers must filter from Australian users’ access, and many sites apparently make the list on the grounds of forbidden opinion content. More on “hate speech” here; also note our recent post on Canada and Ann Coulter, where an anonymous visitor is defending Canada’s speech-penalizing laws.
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So argued former State Department legal adviser John Bellinger III in the WSJ last week, with special reference to the overreaching, extraterritorial Alien Tort Statute. But it’s not as if the efforts to turn the U.S. into the courtroom for the world are slackening at all:
- As Curtis Bradley and Jack Goldsmith note in the Washington Post, a federal court recently allowed to proceed a lawsuit seeking to blame the evils of South African apartheid on Western multinationals, even despite strong opposition to the suit from both the U.S. government’s executive branch and today’s duly elected multiracial South African government. Unfortunately, the State Department’s up-to-now-staunch opposition to this and similar lawsuits is imperiled by the installment of Harold Koh as legal adviser at Foggy Bottom: “Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.”
- If asked what should happen to frozen Cuban-government assets under U.S. control, reasonable possibility #1 might be “hold them against the eventual day when a non-tyrannical regime emerges there, it will need help.” Reasonable possibility #2 might be “divide the assets among Castro’s many victims in some deliberate and step-by-step way, knowing that their injuries are so numerous and severe that even very deserving victims will get only small payments”. The answer you’d think makes no sense at all is “encourage first-come-first-served tort lawsuits, so that the first couple of cases to maneuver their way through the legal process get handsome compensation, while no money is left for either #1 or #2″. So naturally, the latter is what our legal system is doing, previously in $188 million and $253 million verdicts involving single incidents or families, and now in a new case in which the family of Gustavo Villoldo has been awarded $1.179 billion. One of the plaintiff’s lawyers in the case actually boasts that the new award may obstruct a warming of relations between the U.S. and a post-Castro successor regime: “with the opening of relations between the U.S. and Cuba to come, there are debts to society to be paid before that happens” (more on Che Guevara, via).
- On the brighter side, the Obama administration has joined its Bush predecessors in correctly drawing a line against litigation by some September 11 victims and insurance companies: under the Foreign Sovereign Immunity Act, the courts are no place to pursue theories trying to link the rulers of Saudi Arabia to the terrorist attacks.
(cross-posted from Point of Law)
- Teacher’s aide in Queens, N.Y., sues 11 year old, saying he was dashing for ice cream and ran into her (this happened when he was eight) [WPIX; Rosanna Tomack, Joseph Cicak]
- Extraterritoriality, or exit fees? Stiff taxes these days on Americans who renounce their citizenship [Coyote Blog]
- Pennsylvania Gov. Ed Rendell hires Bailey, Perrin & Bailey, big campaign-donor law firm for anti-drugmaker suit [WSJ, Point of Law, ShopFloor, Adler @ Volokh]
- Injured in wrestling fall, will get $15 million from school district [Seattle Times]
- Feds seized Petri dishes at Buffalo professor’s home and word spread of major bioterror bust. Oops [Andrew Grossman, Heritage]
- Toward “public control over the media”: Creepy ideological origins of Nichols/McChesney scheme to subsidize newspapers [Adam Thierer, City Journal]
- Thanks to expensive modern medicine Virginia Postrel has been doing well in her fight against breast cancer, story might not have been so happy in some countries [The Atlantic, second essay responding to letters]
- Jury awards $22.5 million against vaccine maker to man who says he caught polio from daughter’s shot [Staten Island Advance]
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Extraterritoriality strikes again: PartyGaming will pay $105 million to get the federal government to drop charges that the site permitted offshore online gambling by U.S. residents against the wishes of their government. [Balko, Reason "Hit and Run"]
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