Thursday, June 14, 2012
Hi, Blog Readers.
I apologize for my absence, but I was in Asia for six weeks, and four of them were in places where Typepad.com is a blocked site.
For my return, I thought I'd highlight this abstract of a piece in the Hong Kong Law Journal by Bjoern Dressel posted to SSRN about Courts and Governance in Asia. Having visted a high court in Beijing which was a beautiful architectural local, but an eerily empty place, I look forward to finding out "what courts and judges actually do."
Courts and judges have become highly visible in the Asian political landscape as part of a global trend towards the judicialization of politics. Yet while there is increased understanding of what is driving this trend, current models do little to explain what courts and judges actually do; nor is there agreement on how judicial behavior might affect governance. Here I present a typology of judicial politics to support the argument that judicial behavior over time is an outcome of the interplay between institutional, ideational, and agency-specific variables. That is why the effects of judicial decisions on democratic governance are difficult to evaluate. However, the tentative evidence presented here suggests that the relationship is positive primarily in countries where courts have worked to actively facilitate dialogue between different branches of government. This article thus seeks to advance the debate on variances in judicialization and their effects both empirically and theoretically.
As covered earlier, the Supreme Court ordered rebriefing and reargument in Kiobel v. Royal Dutch Petroleum on the issue of “[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Yesterday the Solicitor General filed its brief on this issue. From p.5 of the brief:
In the circumstances of this case, the Court should not fashion a federal common-law cause of action. Here, Nigerian plaintiffs are suing Dutch and British corporations for allegedly aiding and abetting the Nigerian military and police forces in committing torture, extrajudicial killing, crimes against humanity, and arbitrary arrest and detention in Nigeria. Especially in these circumstances—where the alleged primary tortfeasor is a foreign sovereign and the defendant is a foreign corporation of a third country—the United States cannot be thought responsible in the eyes of the international community for affording a remedy for the company’s actions, while the nations directly concerned could. A decision not to create a private right of action under U.S. law in these circumstances would give effect to the Court’s admonition in Sosa to exercise particular caution in deciding whether, “if at all,” to consider suits under rules that would “claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits.” 542 U.S. at 727-728.
The S-G urges a narrow ruling, however, and expresses the view that ATS claims should remain available in circumstances like those present in the seminal case of Filartiga v. Pena-Irala:
There is no need in this case to resolve across the board the circumstances under which a federal common-law cause of action might be created by a court exercising jurisdiction under the ATS for conduct occurring in a foreign country. in particular, the Court should not articulate a categorical rule foreclosing any such application of the ATS. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), for example, involved a suit by Paraguayan plaintiffs against a Paraguayan defendant based on alleged torture committed in Paraguay. The individual torturer was found residing in the United States, circumstances that could give rise to the prospect that this country would be perceived as harboring the perpetrator. And Congress, in the Torture Victim Protection Act of 1991 (TVPA), subsequently created an express statutory private right of action for claims of torture and extrajudicial killing under color of foreign law—the conduct at issue in Filartiga.
This Office is informed by the Department of State that, in its view, after weighing the various considerations, allowing suits based on conduct occurring in a foreign country in the circumstances presented in Filartiga is consistent with the foreign relations interests of the United States, including the promotion of respect for human rights. for this reason, and because Congress has created a statutory cause of action for the conduct at issue in Filartiga, there is no reason here to question the result in that case. Other claims based on conduct in a foreign country should be considered in light of the circumstances in which they arise.
(Hat Tip: Jonathan Hafetz)
Monday, June 11, 2012
Today the Supreme Court granted certiorari in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds (No. 11-1085), a case about class certification standards for certain securities claims. Here are the questions presented:
1. Whether, in a misrepresentation case under SEC Rule 10b-5, the district court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-market theory.
2. Whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory.
You can find links to the Ninth Circuit’s opinion below and the cert-stage briefing at SCOTUSblog’s casefile.