Happy Leap Day or if you prefer that day otherwise known as the 29th Day of February. For all the leap-ers of 2012 here are some wonderfully leap themed articles to whittle away the hours of February 29.
General: http://en.wikipedia.org/wiki/February_29
Calandar and History: http://www.wwu.edu/skywise/leapyear.html
Law (i.e. Is Feb. 28, 2013 or Mar. 1, 2013 exactly one year from Feb. 29, 2012?): http://iowacity.patch.com/articles/what-does-the-law-say-about-leap-day-a-ui-prof-breaks-it-down
Law - Leap Day Litigation: http://www.twincities.com/ci_20058121?source=most_viewed
The Obligatory Leaper Birthday Story That Practically Every Newspaper in the World is Doing Today: http://www.orlandosentinel.com/news/offbeat/sns-ap-us-parenting-leap-year-babies,0,639724.story
And No Hospitals Won't Deliver Babies Early to Avoid the Dreaded Feb. 29 Leap Birthday: http://www.orlandosentinel.com/health/fl-leap-day-2012-births-20120228,0,6297060.story
Culture: http://blogs.wsj.com/speakeasy/2012/02/28/feb-29-your-guide-to-navigating-leap-day/?mod=google_news_blog
Humor: http://www.washingtonpost.com/lifestyle/style/leap-day-its-a-free-day-use-it-wisely/2012/02/28/gIQAbAmAhR_graphic.html
Business: http://www.post-gazette.com/pg/12060/1213253-28.stm
Facts and Stuff: http://www.post-gazette.com/pg/12060/1213240-51.stm
Economic Value: http://www.detroitnews.com/article/20120229/BIZ/202290317/Leap-Day-s-value-eye-beholder?odyssey=mod%7Cnewswell%7Ctext%7CFRONTPAGE%7Cs
Theme Park - Disneyland: http://www.latimes.com/travel/deals/themeparks/la-trb-disneyland-leap-day-02201228,1,1241685.story
Theme Park - Disneyworld: http://www.orlandosentinel.com/os-leap-day-20120-special,0,1822177.special
Contests: http://blogs.sacbee.com/the_scoop/2012/02/bee-photo-contest-for-leap-day.html
Politics: http://www.npr.org/blogs/itsallpolitics/2012/02/28/147607921/ron-paul-celebrates-a-leap-day-birthday-his-wifes
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Wednesday, February 29, 2012
Tuesday, February 28, 2012
Updates to the ABA Model Rules of Professional Conduct
I thought the link to the Michigan Bar blog below was interesting. It concerns some proposals to amend the ABA Model Rules of Professional Conduct. The main thread in these amendments is that the rules are being updated to reflect the ways that technology affects the practice of law. The practice of law has greatly benefited from technology, but it does have a dark side and the ABA is right to address it in the model rules. The model rules themselves have no binding effect unless they are adopted by the states into their individual rules of professional conduct. However, the state rules are heavily influenced by the ABA model rules so any amendments to the model rules are highly significant.
http://sbmblog.typepad.com/sbm-blog/2012/02/the-future-of-legal-ethics.html
http://www.legalethicsforum.com/blog/2012/02/review-of-ethics-2020.html
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
http://sbmblog.typepad.com/sbm-blog/2012/02/the-future-of-legal-ethics.html
http://www.legalethicsforum.com/blog/2012/02/review-of-ethics-2020.html
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Monday, February 27, 2012
Premises Liability - Open and Obvious Doctrine
The open and obvious doctrine of premises liability is one of those classic tort topics. In Clogg v. JNL Ventures before the Michigan Court of Appeals the Court found that the doctrine applied to an uneven sidewalk covered by leaves. The Plaintiff was walking into a restaurant owned by the Defendant in late November 2007. There was some speculation that a "two-inch lip" in the sidewalk underneath the leaves caused the plaintiff to trip, but this was not definitively shown.
The duty owed by a landowner to visitors depends on the visitor's status. Where the visitors are on the land to conduct some sort of business which the owner has the potential to draw economic benefit from the duty of the landowner is highest. It consists of the duty to make the premises reasonably safe from harm, to warn of known dangers, and to reasonably inspect the premises and fix or warn of any defects that are discovered or should have been discovered upon a reasonable inspection of the premises. This duty does not apply to conditions that are known to the invitee or which are open and obvious to such a degree that the invitee is reasonably expected to discover them. It is a condition that is "readily apparent or easily discoverable upon casual inspection by the average user of ordinary intelligence."
The Court ruled that in autumn in Michigan leaf covered sidewalks are common and that "[c]asual observation would alert the average individual of the potential danger posed from slipping on the leaves or tripping over something hidden under the leaves." This ruling is influenced by the fact that the Plaintiff was unable to show exactly what it was on the sidewalk that actually caused her to trip and the fact that uneven sidewalks are not an uncommon occurrence. All the plaintiffs offered the court was speculation on that point. Although it is normal to see a sidewalk covered with leaves during the fall in Michigan, the duty that a landowner owes to a business invitee includes a duty to inspect. The leaves themselves and dangers readily apparent on the surface of the leaves are open and obvious, but a hazardous condition located beneath them might not be depending on the nature of the condition and the degree to which the leaves cover it. If a dangerous condition exists under the leaves such as a sharp object that is not easily discoverable and which does not ordinarily occur on a sidewalk then the open and obvious doctrine probably would not apply. That a two inch lip in the sidewalk is a condition that one would expect to find on a sidewalk whether it is covered by leaves or not does not help the plaintiff either.
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
The duty owed by a landowner to visitors depends on the visitor's status. Where the visitors are on the land to conduct some sort of business which the owner has the potential to draw economic benefit from the duty of the landowner is highest. It consists of the duty to make the premises reasonably safe from harm, to warn of known dangers, and to reasonably inspect the premises and fix or warn of any defects that are discovered or should have been discovered upon a reasonable inspection of the premises. This duty does not apply to conditions that are known to the invitee or which are open and obvious to such a degree that the invitee is reasonably expected to discover them. It is a condition that is "readily apparent or easily discoverable upon casual inspection by the average user of ordinary intelligence."
The Court ruled that in autumn in Michigan leaf covered sidewalks are common and that "[c]asual observation would alert the average individual of the potential danger posed from slipping on the leaves or tripping over something hidden under the leaves." This ruling is influenced by the fact that the Plaintiff was unable to show exactly what it was on the sidewalk that actually caused her to trip and the fact that uneven sidewalks are not an uncommon occurrence. All the plaintiffs offered the court was speculation on that point. Although it is normal to see a sidewalk covered with leaves during the fall in Michigan, the duty that a landowner owes to a business invitee includes a duty to inspect. The leaves themselves and dangers readily apparent on the surface of the leaves are open and obvious, but a hazardous condition located beneath them might not be depending on the nature of the condition and the degree to which the leaves cover it. If a dangerous condition exists under the leaves such as a sharp object that is not easily discoverable and which does not ordinarily occur on a sidewalk then the open and obvious doctrine probably would not apply. That a two inch lip in the sidewalk is a condition that one would expect to find on a sidewalk whether it is covered by leaves or not does not help the plaintiff either.
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Sunday, February 26, 2012
Corporate Liability under the Alien Tort Statute of 1789 - Kiobel v. Royal Dutch Shell Petroleum Co.
The U.S. Supreme Court will hear arguments on Feb. 28th in Kiobel v. Royal Dutch Shell Petroleum Co., case number 10-1491. The plaintiff is invoking the Alien Tort Statute of 1789 (ATS), 28 U.S.C. Section 1350, to sue Royal Dutch Shell over allegations that Shell aided the Nigerian government in ending oil exploration protests using violence and torture well over a decade ago. This blog post will simply provide a brief overview of the case.
I. Questions Presented
The questions before the Supreme Court in this case are:
Between 1993 and 1994 Nigerian forces allegedly shot and killed Ogoni residents and attacked Ogoni villages in Nigeria by beating, raping, and arresting residents and destroying or looting their property. The allegations against Shell are that one of Shell's subsidiaries provided 1) transportation to Nigerian forces, 2) allowed their property to be used as a staging ground for attacks, 3) provided food for soldiers involved in the attacks, and 4) provided compensation to the soldiers involved in the attacks. The complaint alleges that these actions constitute aiding and abetting 1) extrajudicial killing, 2) crimes against humanity, 3) torture or cruel, inhuman, and degrading treatment, 4) arbitrary arrest and detention, 5) violation of the rights to life, liberty, security, and association, 6) forced exile, and 7) property destruction. The complaint was filed in 2002 in the Southern District of New York and amended in May 2004. The defendants moved for judgment on the pleadings under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. The District Court dismissed some of the claims under FRCP 12(b)(6) for failure to state a claim, but refused to dismiss others. The Second Circuit Court of Appeals dismissed all of the claims asserting that a corporation cannot be sued under the ATS in so far as the law of nations portion of the statute is invoked.
III. The Alien Tort Statute
The ATS states that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." This statute grants federal district courts original jurisdiction over well-established violations of international law or treaties signed and ratified by the United States including human rights violations that occurred overseas. Between 1789 and 1980 the ATS was used as a basis for jurisdiction only a handful of times. In 1980 the Second Circuit Court of Appeals revived the statute ruling in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) that it provides federal courts jurisdiction over tort actions brought by aliens only for violations of the law of nations (customary international law) including war crimes, crimes against humanity, or crimes of a (enemy of all mankind). For instance after a default judgment a jury in the Southern District of New York considering only the issue of damages awarded a $4.5 billion verdict against Radovan Karadzic for acts of genocide committed in Bosnia-Herzegovina by persons under his command. Doe v. Karadzic, 2001 U.S. Dist. LEXIS 12928 (S.D.N.Y. Aug. 28, 2001). As a practical matter suing someone with no assets in the United States would not make much sense as you would not be able to collect on the judgment unless they paid it voluntarily or had some mechanism to enforce the judgment against them where their assets are.
IV. Sosa v. Alverez-Machain
In 2004 the Supreme Court ruled in Sosa v. Alverez-Machain, 542 U.S. 692 (2004) that the Alien Tort Statute provides the federal courts with jurisdiction over these claims regardless of where they occurred, but does not provide a separate cause of action. Instead a cause of action may come from the law of nations which is a limited subset of international law of a core set of norms binding universally on world states (piracy, ambassadors, safe conduct) or a treaty obligation of the United States. The ATS permits an alien plaintiff to file a tort action against any person that the United States has personal jurisdiction over regardless of citizenship and regardless of whether the tortuous act took place within or outside the territory of the United States. In the Sosa case Alverez-Machain was a doctor accused of aiding a Mexican Drug cartel in torturing and killing a U.S. DEA agent by keeping the agent alive to prolong his agony and for the cartel to extract more information from him. Alverez-Machain was indicted in the United States for this crime. Unable to obtain his extradition from Mexico the U.S. government engaged Sosa, the defendant, and some other individuals to kidnap Alverez-Machain from Mexico and bring him to the United States where he was arrested. He was acquitted at his criminal trial. After he returned to Mexico he sued the federal government under the Federal Tort Claims Act, but that case was dismissed. He also filed suit against his Mexican kidnappers under the Alien Tort Statute, but all of his claims were dismissed except for his claim against Sosa. He recovered a $25,000 verdict against Sosa for emotional distress damages. The Supreme Court in an opinion by Justice Souter reversed on the basis that although arbitrary arrest was actionable in the United States and Mexico the Alien Tort Statute was limited to violations of customary international law and U.S. treaty obligations. As Alverez-Machain's kidnapping was not in violation of any well-established binding norm of customary international law or any self-executing treaty signed and ratified by the United States he had no cause of action under the Alien Tort Statute.
Justice Scalia's concurrence in Sosa concluded that there could be no international common law as Erie v. Tompkins abolished the old federal common law and forced federal courts to apply state law in cases heard under diversity jurisdiction. Scalia reasoned that the international common law, referred to in the Alien Tort Statute as violations of the law of nations, was really part of federal common law and that it was abolished by Erie. That would leave violations of self-executing treaties signed and ratified by the United States as the only basis for a cause of action using the jurisdiction provided by the Alien Tort Statute unless one were to assume that what Scalia really meant was that Alien Tort Statute jurisdiction is analogous to diversity jurisdiction and that the court should apply the laws of the country where the violation occurred. Some commentators think that this is unlikely to be the case as these claims receive federal jurisdiction as federal questions relating to a federal statute (the Alien Tort Statute of 1789) and do not fall under diversity jurisdiction making Erie inapplicable. Another view could be that the Alien Tort Statute is a separate basis of jurisdiction independent from federal question and diversity jurisdiction. Both federal question and diversity jurisdiction were powers that could be granted to the federal judiciary by congress provided that congress passed a law doing so. Congress passed a law granting the judiciary diversity jurisdiction in 1789, but did not pass a law granting the courts federal question jurisdiction until 1801. That federal question jurisdiction law was repealed the next year and not restored until 1875. Apparently, congress' reluctance to pass federal question jurisdiction into law was based on fears that the federal judiciary might become too powerful. Hence the Alien Tort Claims jurisdiction is actually older than federal question jurisdiction which is an argument for considering it as an independent separate basis of federal courts jurisdiction. However, it is also possible to argue that congress created the Alien Tort Claims Act in 1789 as a more limited version of the federal question jurisdiction that it declined to extend in full at that time. If this argument is accepted then one could conclude that the jurisdiction provided by the Alien Tort Claims Act was perhaps subsumed into federal question jurisdiction when congress finally granted it to the federal courts in 1875. The main problem with that is that congress has never repealed it.
V. The ATS After Sosa
The Court in Sosa left open a number of questions including what constitutes the law of nations and which treaties are actionable, the asymmetry of right if an alien plaintiff enjoys rights under the ATS which a U.S. Citizen would not, and whether entities could be sued under the ATS as Sosa was only concerned with natural persons. The last question on whether entities such as corporations could be sued under the ATS is now before the Court in Kiobel.
VI. The Second Circuit Court of Appeals Opinion in Kiobel
The Second Circuit Court of Appeals ruled that a corporation could not be sued under the ATS. That corporations are liable under domestic law does not mean that they are liable under the law of nations or customary international law. Customary international law or the law of nations includes "those standards, rules, or customs (a) affecting the relationship between states or between an individual and foreign state, and (b) used by those states for their common good and/or dealings inter se." ITT v. Vencap, Ltd, 519 F.2d 1001, 1015 (2d Cir. 1975). The majority asserts that before World War II the law of nations only concerned states and relations between them. The Second Circuit found that while customary international law has expanded since World War II to encompass individuals in addition to states, that expansion has "been limited to natural persons--not 'juridical' persons such as corporations--because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an 'international crime' has rested solely with the individual men and women who have perpetrated it." Kiobel v. Royal Dutch Shell Petroleum Co., 621 F.3d 111, 119 (2nd Cir. 2010). That expansion to include natural persons within customary international law has been limited to war crimes tribunals such as the Nuremberg trials and the International Criminal Court for "a limited number of international crimes--including war crimes, crimes against humanity (such as genocide), and torture..." Id. at 120. The Second Circuit held that "[l]ooking to international law, we find a jurisprudence, first set forth in Nuremberg and repeated by every international tribunal of which we are aware, that offenses against the law of nations (i.e., customary international law) for violations of human rights can be charged against States and against individual men and women but not against juridical persons such as corporations. As a result, although customary international law has sometimes extended the scope of liability for a violation of a given norm to individuals, it has never extended the scope of liability to a corporation." Id. The Court noted that nothing precluded a suit against a corporation's employees, managers, officers, or directors as individual natural persons under the ATS and that congress could amend the ATS to allow for corporate defendants or there might be liability under laws other than the ATS. Id. at 149.
Judge Leval concurred in the result of dismissing the complaint as the complaint did not plead specific facts supporting a plausible inference that the aider and abetter acted with a purpose to bring about human rights abuses. However, he strongly disagreed with the holding that corporations were not subject to the ATS stating that the majority position "deals a substantial blow to international law and its undertaking to protect fundamental human rights. . . . Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims." Id. at 149-150 (Leval, J., concurring). In response to the majority's contention that international tribunals have been established without jurisdiction to impose punishment on corporations Judge Leval states, "[t]he reasons why international tribunals have been established without jurisdiction to impose criminal liability on corporations have to do solely with the theory and objectives of criminal punishment, and have no bearing on civil compensatory liability. The view is widely held among the nations of the world that criminal punishments (under domestic law, as well as international law) are inappropriate for corporations." Id. at 151 (Leval, J., concurring). Leval also cited the 11th Circuit rule that corporations can be sued under the ATS as support for his position.
Links:
Sosa v. Alverez-Machain: http://articles.cnn.com/2004-07-12/justice/sebok.alien.tort.claims_1_human-rights-alien-tort-claims-act-federal-court/4?_s=PM:LAW
Kiobel v. Royal Dutch Shell Petroleum:
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1491.htm
Second Circuit Ruling: http://www.law.smu.edu/getmedia/4c249363-9801-4193-876a-c5600aafa903/Kiobel-v-Royal-Dutch-Petroleum-Co
http://www.chicagotribune.com/news/sns-rt-us-usa-corporations-humanrightstre81n22o-20120224,0,6647821.story
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202516875754&slreturn=1
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
I. Questions Presented
The questions before the Supreme Court in this case are:
1. Whether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.
2. Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the Eleventh Circuit has explicitly held.
The way the Supreme Court has worded the second question seems to favor the Plaintiffs especially the use of the word "immune" which the Second Circuit Court of Appeals majority actually refused to use in their holding along with the reference to the Eleventh Circuit's holding that corporations could be sued under the ATS. The 11th Circuit Court of Appeals has held that a corporation could be held liable under the ATS in Sinaltrainal v. Coca-Cola Co. 578 F.3d 1252, 1263 (11th Cir. 2009); Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Aldana v. DelMonte Fresh Produce N.A., 416 F.3d 1242, 1253 (11th Cir. 2005).
II. Case Facts
II. Case Facts
Between 1993 and 1994 Nigerian forces allegedly shot and killed Ogoni residents and attacked Ogoni villages in Nigeria by beating, raping, and arresting residents and destroying or looting their property. The allegations against Shell are that one of Shell's subsidiaries provided 1) transportation to Nigerian forces, 2) allowed their property to be used as a staging ground for attacks, 3) provided food for soldiers involved in the attacks, and 4) provided compensation to the soldiers involved in the attacks. The complaint alleges that these actions constitute aiding and abetting 1) extrajudicial killing, 2) crimes against humanity, 3) torture or cruel, inhuman, and degrading treatment, 4) arbitrary arrest and detention, 5) violation of the rights to life, liberty, security, and association, 6) forced exile, and 7) property destruction. The complaint was filed in 2002 in the Southern District of New York and amended in May 2004. The defendants moved for judgment on the pleadings under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. The District Court dismissed some of the claims under FRCP 12(b)(6) for failure to state a claim, but refused to dismiss others. The Second Circuit Court of Appeals dismissed all of the claims asserting that a corporation cannot be sued under the ATS in so far as the law of nations portion of the statute is invoked.
III. The Alien Tort Statute
The ATS states that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." This statute grants federal district courts original jurisdiction over well-established violations of international law or treaties signed and ratified by the United States including human rights violations that occurred overseas. Between 1789 and 1980 the ATS was used as a basis for jurisdiction only a handful of times. In 1980 the Second Circuit Court of Appeals revived the statute ruling in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) that it provides federal courts jurisdiction over tort actions brought by aliens only for violations of the law of nations (customary international law) including war crimes, crimes against humanity, or crimes of a (enemy of all mankind). For instance after a default judgment a jury in the Southern District of New York considering only the issue of damages awarded a $4.5 billion verdict against Radovan Karadzic for acts of genocide committed in Bosnia-Herzegovina by persons under his command. Doe v. Karadzic, 2001 U.S. Dist. LEXIS 12928 (S.D.N.Y. Aug. 28, 2001). As a practical matter suing someone with no assets in the United States would not make much sense as you would not be able to collect on the judgment unless they paid it voluntarily or had some mechanism to enforce the judgment against them where their assets are.
IV. Sosa v. Alverez-Machain
In 2004 the Supreme Court ruled in Sosa v. Alverez-Machain, 542 U.S. 692 (2004) that the Alien Tort Statute provides the federal courts with jurisdiction over these claims regardless of where they occurred, but does not provide a separate cause of action. Instead a cause of action may come from the law of nations which is a limited subset of international law of a core set of norms binding universally on world states (piracy, ambassadors, safe conduct) or a treaty obligation of the United States. The ATS permits an alien plaintiff to file a tort action against any person that the United States has personal jurisdiction over regardless of citizenship and regardless of whether the tortuous act took place within or outside the territory of the United States. In the Sosa case Alverez-Machain was a doctor accused of aiding a Mexican Drug cartel in torturing and killing a U.S. DEA agent by keeping the agent alive to prolong his agony and for the cartel to extract more information from him. Alverez-Machain was indicted in the United States for this crime. Unable to obtain his extradition from Mexico the U.S. government engaged Sosa, the defendant, and some other individuals to kidnap Alverez-Machain from Mexico and bring him to the United States where he was arrested. He was acquitted at his criminal trial. After he returned to Mexico he sued the federal government under the Federal Tort Claims Act, but that case was dismissed. He also filed suit against his Mexican kidnappers under the Alien Tort Statute, but all of his claims were dismissed except for his claim against Sosa. He recovered a $25,000 verdict against Sosa for emotional distress damages. The Supreme Court in an opinion by Justice Souter reversed on the basis that although arbitrary arrest was actionable in the United States and Mexico the Alien Tort Statute was limited to violations of customary international law and U.S. treaty obligations. As Alverez-Machain's kidnapping was not in violation of any well-established binding norm of customary international law or any self-executing treaty signed and ratified by the United States he had no cause of action under the Alien Tort Statute.
Justice Scalia's concurrence in Sosa concluded that there could be no international common law as Erie v. Tompkins abolished the old federal common law and forced federal courts to apply state law in cases heard under diversity jurisdiction. Scalia reasoned that the international common law, referred to in the Alien Tort Statute as violations of the law of nations, was really part of federal common law and that it was abolished by Erie. That would leave violations of self-executing treaties signed and ratified by the United States as the only basis for a cause of action using the jurisdiction provided by the Alien Tort Statute unless one were to assume that what Scalia really meant was that Alien Tort Statute jurisdiction is analogous to diversity jurisdiction and that the court should apply the laws of the country where the violation occurred. Some commentators think that this is unlikely to be the case as these claims receive federal jurisdiction as federal questions relating to a federal statute (the Alien Tort Statute of 1789) and do not fall under diversity jurisdiction making Erie inapplicable. Another view could be that the Alien Tort Statute is a separate basis of jurisdiction independent from federal question and diversity jurisdiction. Both federal question and diversity jurisdiction were powers that could be granted to the federal judiciary by congress provided that congress passed a law doing so. Congress passed a law granting the judiciary diversity jurisdiction in 1789, but did not pass a law granting the courts federal question jurisdiction until 1801. That federal question jurisdiction law was repealed the next year and not restored until 1875. Apparently, congress' reluctance to pass federal question jurisdiction into law was based on fears that the federal judiciary might become too powerful. Hence the Alien Tort Claims jurisdiction is actually older than federal question jurisdiction which is an argument for considering it as an independent separate basis of federal courts jurisdiction. However, it is also possible to argue that congress created the Alien Tort Claims Act in 1789 as a more limited version of the federal question jurisdiction that it declined to extend in full at that time. If this argument is accepted then one could conclude that the jurisdiction provided by the Alien Tort Claims Act was perhaps subsumed into federal question jurisdiction when congress finally granted it to the federal courts in 1875. The main problem with that is that congress has never repealed it.
V. The ATS After Sosa
The Court in Sosa left open a number of questions including what constitutes the law of nations and which treaties are actionable, the asymmetry of right if an alien plaintiff enjoys rights under the ATS which a U.S. Citizen would not, and whether entities could be sued under the ATS as Sosa was only concerned with natural persons. The last question on whether entities such as corporations could be sued under the ATS is now before the Court in Kiobel.
VI. The Second Circuit Court of Appeals Opinion in Kiobel
The Second Circuit Court of Appeals ruled that a corporation could not be sued under the ATS. That corporations are liable under domestic law does not mean that they are liable under the law of nations or customary international law. Customary international law or the law of nations includes "those standards, rules, or customs (a) affecting the relationship between states or between an individual and foreign state, and (b) used by those states for their common good and/or dealings inter se." ITT v. Vencap, Ltd, 519 F.2d 1001, 1015 (2d Cir. 1975). The majority asserts that before World War II the law of nations only concerned states and relations between them. The Second Circuit found that while customary international law has expanded since World War II to encompass individuals in addition to states, that expansion has "been limited to natural persons--not 'juridical' persons such as corporations--because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an 'international crime' has rested solely with the individual men and women who have perpetrated it." Kiobel v. Royal Dutch Shell Petroleum Co., 621 F.3d 111, 119 (2nd Cir. 2010). That expansion to include natural persons within customary international law has been limited to war crimes tribunals such as the Nuremberg trials and the International Criminal Court for "a limited number of international crimes--including war crimes, crimes against humanity (such as genocide), and torture..." Id. at 120. The Second Circuit held that "[l]ooking to international law, we find a jurisprudence, first set forth in Nuremberg and repeated by every international tribunal of which we are aware, that offenses against the law of nations (i.e., customary international law) for violations of human rights can be charged against States and against individual men and women but not against juridical persons such as corporations. As a result, although customary international law has sometimes extended the scope of liability for a violation of a given norm to individuals, it has never extended the scope of liability to a corporation." Id. The Court noted that nothing precluded a suit against a corporation's employees, managers, officers, or directors as individual natural persons under the ATS and that congress could amend the ATS to allow for corporate defendants or there might be liability under laws other than the ATS. Id. at 149.
Judge Leval concurred in the result of dismissing the complaint as the complaint did not plead specific facts supporting a plausible inference that the aider and abetter acted with a purpose to bring about human rights abuses. However, he strongly disagreed with the holding that corporations were not subject to the ATS stating that the majority position "deals a substantial blow to international law and its undertaking to protect fundamental human rights. . . . Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims." Id. at 149-150 (Leval, J., concurring). In response to the majority's contention that international tribunals have been established without jurisdiction to impose punishment on corporations Judge Leval states, "[t]he reasons why international tribunals have been established without jurisdiction to impose criminal liability on corporations have to do solely with the theory and objectives of criminal punishment, and have no bearing on civil compensatory liability. The view is widely held among the nations of the world that criminal punishments (under domestic law, as well as international law) are inappropriate for corporations." Id. at 151 (Leval, J., concurring). Leval also cited the 11th Circuit rule that corporations can be sued under the ATS as support for his position.
Links:
Sosa v. Alverez-Machain: http://articles.cnn.com/2004-07-12/justice/sebok.alien.tort.claims_1_human-rights-alien-tort-claims-act-federal-court/4?_s=PM:LAW
Kiobel v. Royal Dutch Shell Petroleum:
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1491.htm
Second Circuit Ruling: http://www.law.smu.edu/getmedia/4c249363-9801-4193-876a-c5600aafa903/Kiobel-v-Royal-Dutch-Petroleum-Co
http://www.chicagotribune.com/news/sns-rt-us-usa-corporations-humanrightstre81n22o-20120224,0,6647821.story
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202516875754&slreturn=1
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Friday, February 24, 2012
Arbitration Clauses and Public Policy - Marmet Health Care Center v. Brown
Marmet Health Care Center v. Brown was decided by the U.S. Supreme Court on Feb. 21, 2012 in a per curium (meaning through the court) opinion consolidating 3 arbitration clause cases from West Virginia. The Supreme Court of Appeals of West Virginia had held that as a matter of public policy all arbitration agreements applying to personal injury or wrongful death negligence claims against nursing homes were unenforceable if they were entered into prior to occurence resulting in the claim. Two of the arbitration clauses in question required the parties to arbitrate all disputes except for claims to collect late payments owed by patients and required the party filing the arbitration to be responsible for the filing fee with the American Arbitration Association. The third arbitration agreement required that all claims be submitted to arbitration.
The U.S. Supreme Court reversed in an unsigned opinion and emphasized that state and federal courts must enforce the Federal Arbitration Act, 9 U.S.C. Section 1 (FAA) for all arbitration agreements. The Supreme Court of West Virginia had considered the possibility that the FAA might preempt state policy considerations, but it concluded that congress did not intend the FAA to apply to injury or wrongful death suits that are only collaterally related to an agreement affecting interstate commerce. The U.S. Supreme Court disagreed and found not exceptions to the application of the FAA existed. It emphasized that a state law prohibiting arbitration of a certain kind of claim will always be preempted by the FAA.
Another holding of the state court was that the arbitration clauses were unconcionable. However, the U.S. Supreme Court vacated this portion of the state court ruling as well as it was unclear to how much this finding was influenced by the same general public policy considerations that underpinned the court's failure to apply the FAA. The Supreme Court remanded the case to the Supreme Court of Appeals of West Virginia to decide whether state common law would render the arbitration claues unenforceable for unconcionability or any other grounds that "are not specific to arbitration and pre-empted by the FAA."
This case serves to underline the fact of life that arbitration agreements are always going to be enforced by courts to bar any other forum for resolving disputes covered by the agreement unless there is some other contractual issue that renders the agreement unenforceable such as unconcionability. This is significant as arbitration awards are very difficult to overturn in most states unless you can show the arbitrator was biased. If you have an enforceable contract then public policy will not render an arbitration clause unenforceable as the FAA preempts that public policy. For instance arbitration agreements that require the application of religious or cultural laws or norms would be enforceable regardless of any public policy disapproving of or disfavoring those religious or cultural laws as the FAA would preempt that public policy. However, if those underlying rules of arbitration could be shown to be unconscionable or some other precept of contract law applied in a particular case to render the agreement unenforceable for reasons not specific to arbitration then the clause might be unenforceable in that instance.
Generally people enter into contracts assuming that nothing will go wrong and that no disputes will arise. This leads them to overlook arbitration clauses. Of course, disputes will happen at some point and become inevitable if you enter into enough contracts over the course of time. The lesson here is that you might want to closely review the arbitration clause in any contract you enter into that has one. You will most likely be bound by it. Depending on who you are dealing with some aspects of an arbitration agreement may be negotiable.
Marmet Health Care Center v. Brown is located at www.supremecourt.gov/opinions/11pdf/11-391.pdf
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
The U.S. Supreme Court reversed in an unsigned opinion and emphasized that state and federal courts must enforce the Federal Arbitration Act, 9 U.S.C. Section 1 (FAA) for all arbitration agreements. The Supreme Court of West Virginia had considered the possibility that the FAA might preempt state policy considerations, but it concluded that congress did not intend the FAA to apply to injury or wrongful death suits that are only collaterally related to an agreement affecting interstate commerce. The U.S. Supreme Court disagreed and found not exceptions to the application of the FAA existed. It emphasized that a state law prohibiting arbitration of a certain kind of claim will always be preempted by the FAA.
Another holding of the state court was that the arbitration clauses were unconcionable. However, the U.S. Supreme Court vacated this portion of the state court ruling as well as it was unclear to how much this finding was influenced by the same general public policy considerations that underpinned the court's failure to apply the FAA. The Supreme Court remanded the case to the Supreme Court of Appeals of West Virginia to decide whether state common law would render the arbitration claues unenforceable for unconcionability or any other grounds that "are not specific to arbitration and pre-empted by the FAA."
This case serves to underline the fact of life that arbitration agreements are always going to be enforced by courts to bar any other forum for resolving disputes covered by the agreement unless there is some other contractual issue that renders the agreement unenforceable such as unconcionability. This is significant as arbitration awards are very difficult to overturn in most states unless you can show the arbitrator was biased. If you have an enforceable contract then public policy will not render an arbitration clause unenforceable as the FAA preempts that public policy. For instance arbitration agreements that require the application of religious or cultural laws or norms would be enforceable regardless of any public policy disapproving of or disfavoring those religious or cultural laws as the FAA would preempt that public policy. However, if those underlying rules of arbitration could be shown to be unconscionable or some other precept of contract law applied in a particular case to render the agreement unenforceable for reasons not specific to arbitration then the clause might be unenforceable in that instance.
Generally people enter into contracts assuming that nothing will go wrong and that no disputes will arise. This leads them to overlook arbitration clauses. Of course, disputes will happen at some point and become inevitable if you enter into enough contracts over the course of time. The lesson here is that you might want to closely review the arbitration clause in any contract you enter into that has one. You will most likely be bound by it. Depending on who you are dealing with some aspects of an arbitration agreement may be negotiable.
Marmet Health Care Center v. Brown is located at www.supremecourt.gov/opinions/11pdf/11-391.pdf
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Wednesday, February 22, 2012
Stolen Valor Case Heard by the Supreme Court
The Supreme Court heard arguments today, http://online.wsj.com/article/SB10001424052970203960804577239330547805116.html?mod=googlenews_wsj, on United States v. Alvarez, http://www.oyez.com/cases/2010-2019/2011/2011_11_210, which is an interesting first amendment case involving the Stolen Valor Act that was passed and signed into law in 2006. I might post more on it when the Court rules. However, I can't help but notice how many amici briefs these prominent cases attract. It seems a little excessive though it probably keeps the law clerks busy. Deluging any judge with paper is generally ineffective. I can't imagine that it is any different at the Supreme Court level. The docket is below:
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| ~~Name~~~~~~~~~~~~~~~~~~~~~ | ~~~~~~~Address~~~~~~~~~~~~~~~~~~ | ~~Phone~~~ |
| Attorneys for Petitioner: | ||
| Donald B. Verrilli Jr. | Solicitor General | (202) 514-2217 |
| Counsel of Record | United States Department of Justice | |
| 950 Pennsylvania Avenue, N.W. | ||
| Washington, DC 20530-0001 | ||
| SupremeCtBriefs@USDOJ.gov | ||
| Party name: United States | ||
| Attorneys for Respondent: | ||
| Jonathan D. Libby | Deputy Federal Public Defender | (213) 894-2905 |
| Counsel of Record | Office of the Public Defender | |
| 321 East 2nd Street | ||
| Los Angeles, CA 90012 | ||
| Jonathan_Libby@fd.org | ||
| Party name: Xavier Alvarez | ||
| Other: | ||
| Kevin N. Ainsworth | Mintz Levin Cohn Ferris Glovsky and Popeo PC | (212)-692-6745 |
| 666 Third Avenue | ||
| New York, NY 10017 | ||
| kainsworth@mintz.com | ||
| Party name: Congressional Medal of Honor Foundation | ||
| Michael A. Bamberger | SNRDenton US LLP | (212) 768-6700 |
| 1221 Ave. of the Americas | ||
| New York, NY 10020 | ||
| mbamberger@snrdenton.com | ||
| Party name: American Booksellers Foundation for Free Expression, et al. | ||
| Robert L. Corn-Revere | Davis Wright Tremaine, LLP | (202) 973-4200 |
| 1919 Pennsylvania Avenue, N.W., Suite 800 | ||
| Washington, DC 20006-3401 | ||
| bobcornrevere@dwt.com | ||
| Party name: Reporters Committee for Freedom of the Press, et al. | ||
| Arthur C. D'Andrea | Assistant Solicitor General | (512) 936-2868 |
| Texas Attorney General's Office | ||
| P. O. Box 12548 MC059 | ||
| Austin, TX 78711 | ||
| arthur.dandrea@oag.state.tx.us | ||
| Party name: Texas, et al. | ||
| John M. Greabe | University of New Hampshire | (603)-746-6138 |
| School of Law | ||
| 2 White Street | ||
| Concord, NH 03301 | ||
| John.Greabe@law.unh.edu | ||
| Party name: Intellectual Property Clinic of the University of New Hampshire | ||
| Jameel Jaffer | American Civil Liberties Union Foundation | (212) 549-2500 |
| 125 Broad Street | ||
| New York, NY 10004 | ||
| jjaffer@aclu.org | ||
| Party name: American Civil Liberties Union, et al. | ||
| Jean-Paul Jassy | Bostwick & Jassy LLP | (310) 979-6059 |
| 12400 Wilshire Blvd. Suite 400 | ||
| Los Angeles, CA 90025 | ||
| jpjassy@bostwickjassy.com | ||
| Party name: First Amendment Coalition | ||
| Reed Lee | J.D. Obenberger & Associates | (312) 558-6427 |
| 70 West Madison Street, Suite 3700 | ||
| Chicago, IL 60602 | ||
| reedlee@strictscrutiny.net | ||
| Party name: First Amendment Lawyers Association | ||
| Cary B. Lerman | Munger Tolles & Olson LLP | (213) 683-9163 |
| 355 South Grand Avenue 35th Floor | ||
| Los Angeles, CA 90071-1560 | ||
| Party name: Professor Jonathan D. Varat | ||
| Michael T. Morley | Winston Strawn LLP1700 K Street NW | (202)-282-5791 |
| Washington, DC 20006 | ||
| mmorley@winston.com | ||
| Party name: Veterans of Foreign Wars of the United States, et al. | ||
| Michael V. Schafler | 1000 Wilshire Blvd. Suite 600 | (213)-629-9040 |
| Los Angeles, CA 90017 | ||
| schafler@caldwell-leslie.com | ||
| Party name: National Association of Criminal Defense Lawyers | ||
| Kent S. Scheidegger | Criminal Justice Legal Foundation | (916) 446-0345 |
| 2131 L Street | ||
| Sacramento, CA 95816 | ||
| kent@scheidegger@CJLF.org | ||
| Party name: Legion of Valor of the United States, et al. | ||
| Aaron M. Streett | Baker Botts L.L.P. | (713) 229-1234 |
| 910 Louisiana Street | ||
| Houston, TX 77002 | ||
| aaron.streett@bakerbotts.com | ||
| Party name: The American Legion | ||
| Eugene Volokh | UCLA School of Law | (310) 206-3926 |
| 405 Hilgard Ave. | ||
| Los Angeles, CA 90095 | ||
| volokh@law.ucla.edu | ||
| Party name: Professors Eugene Volokh, and James Weinstein | ||
| J. Joshua Wheeler | Thomas Jefferson Center for Protection of Free Expression | (434) 295-4784 |
| 400 Worrell Drive | ||
| Charlottesville, VA 22911 | ||
| jjw@tjcenter.org | ||
| Party name: Thomas Jefferson Center for the Protection of Free Expression s/ Kurt Koehler 308 1/2 S. State Street Suite 36 Ann Arbor, Michigan 48198 (Washtenaw County) | ||
Miranda Warnings In Prison Settings
The U.S. Supreme Court issued an opinion in the case of Howes v. Fields today. The case involved a collateral habeus corpus petition on a criminal sexual conduct conviction that had been affirmed on direct appeal. The defendant was incarcerated in Michigan when he was taken from his cell to a conference room where he was questioned by armed deputies for between 5-7 hours about allegations that he sexually abused a 12 year old before he was incarcerated. He was told he could go back to his cell at any time and the door was sometimes open and sometimes closed. He did not ask to leave and eventually confessed to the allegations and that confession was used to obtain a conviction. Both at trial and on direct appeal he attempted to have the confession suppressed as he was never given Miranda warnings during the questioning that he characterized as custodial. This argument was rejected.
However, the habeus petition was granted by the federal district court and 6th Circuit Court of Appeals on the basis that the defendant was not given a Miranda warning as required during a custodial interrogation. The 6th circuit reasoned that an interrogation in a jail or prison setting is custodial if 1) It occurred during imprisonment, 2) Involved questioning in private about 3) events that occurred in the outside world.
The Supreme Court, in an opinion authored by Justice Alito, rejected this reasoning and held that custodial interrogation must be judged by whether the circumstances present a serious danger of coercion. Namely, would a reasonable person have felt free to terminate the interrogation and leave provided that the interrogation environment presents the same coercive pressures as the station house interrogation that was at issue in Miranda v. Arizona. The Court found that there can be a break in custody during an uninterrupted term of incarceration. Factors such as the length of the interrogation, that the interrogators were armed and used sharp language, and the fact that the defendant was not told he could decline the interview favor a finding that the interrogation was custodial. However other factors offset these as the defendant was told he could leave and go back to his cell at any time, he was not physically restrained, the conference room was well lit and not uncomfortable, the door was sometimes open, and he was offered food and water.
Justice Ginsburg dissented joined by Justices Sotomayor and Breyer stating, "I would not train, as the Court does, on the question whether there can be custody within custody. Instead, I would ask, as Miranda put it, whether Fields was subjected to 'incommunicado interro- gation . . . in a police-dominated atmosphere,' 384 U. S., at 445, whether he was placed, against his will, in an inher- ently stressful situation, see id., at 468, and whether his 'freedom of action [was] curtailed in any significant way,' id., at 467. Those should be the key questions, and to each I would answer 'Yes.'". Ginsburg focused on the fact that the defendant was not told he could decline the interview with the deputies, that he felt trapped, that he believed the deputies would not allow him to leave the room despite their statement that he could, that he told the deputies he did not wish to speak with them anymore multiple times, that although he was given water he was not given his night medications, and that the deputies were armed.
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
However, the habeus petition was granted by the federal district court and 6th Circuit Court of Appeals on the basis that the defendant was not given a Miranda warning as required during a custodial interrogation. The 6th circuit reasoned that an interrogation in a jail or prison setting is custodial if 1) It occurred during imprisonment, 2) Involved questioning in private about 3) events that occurred in the outside world.
The Supreme Court, in an opinion authored by Justice Alito, rejected this reasoning and held that custodial interrogation must be judged by whether the circumstances present a serious danger of coercion. Namely, would a reasonable person have felt free to terminate the interrogation and leave provided that the interrogation environment presents the same coercive pressures as the station house interrogation that was at issue in Miranda v. Arizona. The Court found that there can be a break in custody during an uninterrupted term of incarceration. Factors such as the length of the interrogation, that the interrogators were armed and used sharp language, and the fact that the defendant was not told he could decline the interview favor a finding that the interrogation was custodial. However other factors offset these as the defendant was told he could leave and go back to his cell at any time, he was not physically restrained, the conference room was well lit and not uncomfortable, the door was sometimes open, and he was offered food and water.
Justice Ginsburg dissented joined by Justices Sotomayor and Breyer stating, "I would not train, as the Court does, on the question whether there can be custody within custody. Instead, I would ask, as Miranda put it, whether Fields was subjected to 'incommunicado interro- gation . . . in a police-dominated atmosphere,' 384 U. S., at 445, whether he was placed, against his will, in an inher- ently stressful situation, see id., at 468, and whether his 'freedom of action [was] curtailed in any significant way,' id., at 467. Those should be the key questions, and to each I would answer 'Yes.'". Ginsburg focused on the fact that the defendant was not told he could decline the interview with the deputies, that he felt trapped, that he believed the deputies would not allow him to leave the room despite their statement that he could, that he told the deputies he did not wish to speak with them anymore multiple times, that although he was given water he was not given his night medications, and that the deputies were armed.
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Tuesday, February 21, 2012
Service of process by Facebook in Britain
Link to News Story
An interesting development though I don't think that people using Facebook would enjoy the thought of being served via Facebook. I'd imagine there would be personal jurisdiction issues if this was adopted in the United States at least if one of the parties does not live in the forum state and there are no other connections that might make them fall under a long arm statute. Of course that is not as much of an issue if we are talking about diversity jurisdiction in federal court.
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
An interesting development though I don't think that people using Facebook would enjoy the thought of being served via Facebook. I'd imagine there would be personal jurisdiction issues if this was adopted in the United States at least if one of the parties does not live in the forum state and there are no other connections that might make them fall under a long arm statute. Of course that is not as much of an issue if we are talking about diversity jurisdiction in federal court.
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
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