July 8, 2011
D.C. Circuit Decision in Doe v. Exxon Mobil: The Alien Tort Statute, Justiciability, Standing and More
Today the U.S. Court of Appeals for the D.C. Circuit handed down its decision in Doe v. Exxon Mobil Corp. (No. 09-7125). The panel splits 2-1, with Judge Rogers writing the 112-page Opinion for the Court (joined by Judge Tatel) and Judge Kavanaugh writing a 39-page dissent. The majority opinion begins:
Pursuant to a contract with the Indonesian government, Exxon Mobil Corporation, a United States corporation, and several of its wholly owned subsidiaries (hereinafter “Exxon”) operated a large natural gas extraction and processing facility in the Aceh province of Indonesia in 2000–2001. Plaintiffs-appellants are fifteen Indonesian villagers from the Aceh territory. Eleven villagers filed a complaint in 2001 alleging that Exxon’s security forces committed murder, torture, sexual assault, battery, and false imprisonment in violation of the Alien Tort Statute (“ATS”) and the Torture Victim Protection Act (“TVPA”), and various common law torts. (The Doe I complaint.) Four other Aceh villagers alleged in 2007 that Exxon committed various common law torts. (The Doe VIII complaint.) All plaintiffs-appellants allege that Exxon took actions both in the United States and at its facility in the Aceh province that resulted in their injuries. The district court dismissed the statutory claims, see Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005), and discovery proceeded on the tort claims. Those claims, however, were subsequently dismissed for lack of prudential standing. See Doe VIII v. Exxon Mobil Corp., 658 F. Supp. 2d 131 (D.D.C. 2009). Plaintiffs-appellants challenge the dismissals of their complaints and Exxon filed a cross-appeal, inter alia raising for the first time that as a corporation it was immune from liability under the ATS.
For the reasons that follow, we conclude that aiding and abetting liability is well established under the ATS. We further conclude under our precedent that this court should address Exxon’s contention on appeal of corporate immunity and, contrary to its view and that of the Second Circuit, we join the Eleventh Circuit in holding that neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. We affirm the dismissal of the TVPA claims in view of recent precedent of this court. We conclude, however, that Exxon’s objections to justiciability are unpersuasive and that the district court erred in ruling that appellants lack prudential standing to bring their non-federal tort claims and in the choice of law determination.
Hot Off The Presses: Recent Articles Of Interest
With a hat tip to the Current Index to Legal Periodicals, here are some recent articles that may be of interest:
Jessica J. Berch, The Costs of Litigation: A Proposal to Amend Federal Rule of Procedure 39(a)(4), 83 Temp. L. Rev. 103 (2010).
Michael G. Collins & Jonathan Remy Nash, Prosecuting Federal Crimes in State Courts, 97 Va. L. Rev. 243 (2011).
Charlton C. Copeland, Federal Law in State Court: Judicial Federalism Through a Relational Lens, 19 Wm. & Mary Bill Rts. J. 511 (2011).
David Degnan, Accounting for the Costs of Electronic Discovery. 12 Minn. J. L. Sci. & Tech. 151 (2011).
Bret M. Dickey & Daniel L. Rubinfeld, Antitrust Class Certification: Towards an Economic Framework, 66 N.Y.U. Ann. Surv. Am. L. 459 (2011).
Katherine Florey, Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19. 58 UCLA L. Rev. 667 (2011).
Michael Steven Green, Erie's Suppressed Premise, 95 Minn. L. Rev. 1111 (2011).
Jonathan M. Jacobson & Joyce Choi, Curtailing the Impact of Class Actions on Antitrust Policy, 66 N.Y.U. Ann. Surv. Am. L. 549 (2011).
Daphna Kapeliuk & Alon Klement, Contracting Around Twombly, 60 DePaul L. Rev. 1 (2010).
Alexandra D. Lahav, Are Class Actions Unconstitutional?, 109 Mich. L. Rev. 993 (2011) (reviewing Martin H. Redish, Wholesale Justice: Constitutional Democracy and the Class Action Lawsuit (2009)).
Mark A. Levin, Civil Justice and the Constitution: Limits on Instrumental Judicial Administration in Japan, 20 Pac. Rim L. & Pol'y J. 265 (2011).
Rex Mann, What the Federal Rules of Procedure Forms say about Twombly and Iqbal: Implications of the Forms on the Supreme Court's Standard, 41 U. Mem. L. Rev. 501 (2011).
Arthur R. Miller, Are the Federal Courthouse Doors Closing? What's Happened to the Federal Rules of Civil Procedure?, Walter B. Huffman Distinguished Lecture (January 18, 2011), in 43 Tex. Tech. L. Rev. 587 (2011).
Terry F. Moritz & Brandon J. Fitch, The Future of Consumer Arbitration in Light of Stolt-Nielsen, 23 Loy. Consumer L. Rev. 265 (2011).
Matthew L. Perdoni, Revising the Analysis of Personal Jurisdiction to Accommodate Internet-Based Personal Contacts, 14 U.D.C. L. Rev. 159 (2011).
Frank Sloan & Lindsey Chepke, Litigation, Settlement, and the Public Welfare: Lessons from the Master Settlement Agreement, 17 Widener L. Rev. 159 (2011).
Maya Steinitz, Whose Claim is this Anyway? Third-Party Litigation Funding, 95 Minn. L. Rev. 1268 (2011).
Michael Blasie, Note, A Separation of Powers Defense of Federal Rulemaking Power, 66 N.Y.U. Ann. Surv. Am. L. 593 (2011).
Matthew K.K. Sumida, Comment, Defendant Class Actions and Patent Infringement Litigation, 58 UCLA L. Rev. 843 (2011).
July 7, 2011
Luff on Litigation as Regulatory Gap-Filler
Professor Patrick Luff (Washington & Lee) has posted on SSRN a draft of his article, Risk Regulation and Regulatory Litigation on SSRN. Here’s the abstract:
Since at least the 1960s, when Congress enacted civil rights statutes that provided for private enforcement, courts have been hotbeds of public policy. Only recently, however, has this phenomenon been recognized for what it is: courts have become essential actors in the regulatory state. What little scholarship there is on the use of courts to achieve regulatory ends is often heavy on rhetoric, but short on theory. While commentators have been quick to criticize the phenomenon of regulatory litigation, they have done little to determine what it actually is. As a result, the young field of regulatory litigation lacks fundamental theoretical discussions necessary for the fruitful development of the field. This article fills the gaps in the theoretical literature in three ways. First, this article presents the theory that regulatory litigation has developed to address the gaps between socially demanded levels of risk regulation and the amount of risk protection actually provided by the state. Second, this article collects and analyzes the scholarship to date that attempts to find the line that divides regulatory from non-regulatory litigation, and explains how and why previous definitions of regulatory litigation have fallen short. Finally, this article presents a theoretical discussion of the nature of regulatory litigation that distinguishes between top-down regulation through statutory promulgation and bottom-up regulation that occurs through the remedial choices made by litigants and judges.
July 6, 2011
SCOTUS Cert Grant of Interest: Mims v. Arrow Financial
Last week the Supreme Court granted certiorari in Mims v. Arrow Financial Services LLC (No. 10-1195), which presents the question: Did Congress divest the federal district courts of their federal-question jurisdiction under 28 U.S.C. § 1331 over private actions brought under the Telephone Consumer Protection Act?
SCOTUSblog’s case file is available here, which contains links to the Eleventh Circuit’s opinion below and the cert-stage briefs.
July 5, 2011
ABA Annual Meeting in Toronto August 4-9
The American Bar Association will hold its annual meeting in Toronto from August 4-9 (announcement).
The schedule of programs reveals that there are several comparative programs on Canadian law (Trial Practice and Tactics in Canada and the United States; Calculating Damages in an Employment Case: Strategies for the Canadian and U.S. Litigant; Resolving Construction Disputes in the U.S. and Canada; and numerous others).
Naturally, there is a program on “Class Actions after Wal-Mart v. Dukes.”
Kochan On Iqbal And The Word "Conclusory"
Professor Donald Kochan (Chapman University) has posted on SSRN a draft of his article, While Effusive, 'Conclusory' is Still Quite Elusive: The Story of a Word, Iqbal, and a Perplexing Lexical Inquiry of Supreme Importance, which is forthcoming in the University of Pittsburgh Law Review. Here’s the abstract:
The meaning of the word “conclusory” seems really, quite elusory. Conclusory is a widespread, common, and effusive word in the modern legal lexicon. Yet you would not necessarily know that by looking through many dictionaries. “Conclusory” has been a late comer to the pages of most dictionaries. Even today, not all dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. Yet the word “conclusory” has taken center stage in the procedural plays of civil litigation with the help of the 2009 U.S. Supreme Court decision in Ashcroft v. Iqbal. This Article attempts to explore this definitional perplexity.
Available dictionary definitions at best give us a general idea of what “conclusory” means but can hardly resolve the perplexity of how the word is used to filter the acceptable from the unacceptable pleadings. The “conclusory” standard in Iqbal might turn out to be nothing more than a “I know it when I see it” standard. There is a sense in Iqbal that conclusory statements are like procedural pornography so profane and lacking in quality that they are not entitled to protection of otherwise liberal pleading standards.
Part I documents the usage of the word “conclusory” and the upward trend in its use throughout the past century. Part II summarizes the use of the word “conclusory” in the pleadings standards established in Twombly and Iqbal. Part III then surveys the literature on Iqbal. Part IV concludes that the dictionary definitions are of little utility in understanding the meaning of “conclusory” in Iqbal and do not provide clear guidance to litigants or the courts in applying Iqbal’s pleadings standards in that regard. Such a conclusion should not be surprising, I contend, in light of the inherent limitations in dictionaries themselves. Part V presents two primary conclusions: (1) the Iqbal “conclusory” prong has a low degree of predictability in its application and is largely subject to judicial interpretation of pleadings on a highly individualized, judge-specific, and case-by-case basis; and (2) one of the only methods available to operate within this high degree of uncertainty is to base one’s understanding of the Iqbal test on the historical usages of the word within past court decisions. Appendix E provides a reference list of U.S. Supreme Court cases that have used the term “conclusory” with minor annotation to indicate some context of the usage.
This Article will attempt to tell the history and story of one word – “conclusory”. At the end, the reader will still not know what exactly that one word means. But therein lies the point of the exercise upon which this Article embarks. It is a seat on the observation deck to the evolutionary spread of a word into our lexicon, a revelation about the fallibility of dictionaries, a recognition of the sometimes indeterminate use of language, a caution that a word’s meaning is seldom revealed in isolation, a lesson on the importance of contextual analysis, a debate about the utility of flexibility in standards, and a charge in the face of unavoidable confusion to make the best use of skill and analogy to operate within the constraints of a new judicially-demanded ante for entering the game of civil litigation.
NYTimes Reports on NY Judicial Salary Freeze
The New York Times has an article on the judicial salary freeze in New York, reporting that many judges are leaving the bench in favor of private practice.