Monday, February 17, 2014
It’s not about the Yankees slugger, or the Johnny Cash & June Carter classic, or the capital city of Mississippi. It’s about recent procedural reforms in the United Kingdom, initiated by – and named for – Lord Justice Rupert Jackson.
Sunday, September 22, 2013
On Monday, September 23, 2013, the International Court of Justice (ICJ) will celebrate the Centenary of the Peace Palace with a conference that will consider the following four topics:
1. A Century of International Justice and Prospects for the Future;
2. The International Court of Justice and the International Legal System;
3. The Role of the International Court of Justice for Enhancing the Rule of Law; and
4. The International Court of Justice and the United Nations: Relationship of the ICJ with other UN Organs.
A detailed conference agenda can be found here: http://www.icj-cij.org/presscom/files/4/17524.pdf.
And, information about how to view the conference either by live streaming or on-demand can be found here: http://www.icj-cij.org/presscom/files/4/17534.pdf.
Tuesday, May 14, 2013
S.I. Strong (Missouri/Supreme Court Fellow) has posted two articles about international commercial arbitration to SSRN.
International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States.
Efforts have been made to place the debate about the New York Convention within the context of post-Medellin jurisprudence concerning self-executing treaties. However, that framework does not adequately address the difficult constitutional question as to what course should be adopted when a particular issue is governed by both a treaty and a statute that is meant to incorporate that treaty into domestic law.
This Article addresses that question by considering the role of and relationship between the New York Convention and the Federal Arbitration Act, and by providing a robust analysis of the constitutional, statutory and public international issues that arise in cases involving international treaties and incorporative statues. Although the discussion is rooted in the context of international commercial arbitration, the Article provides important theoretical and practical insights that are equally applicable in other types of public international law.
For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to distinguish between requests made in the context of international commercial arbitration and requests made in the context of international investment arbitration. In so doing, the Article considers issues relating to grants of jurisdiction, state interests and standard interpretive canons.
Wednesday, April 17, 2013
Today the Supreme Court decided Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), a long-pending case involving the Alien Tort Statute (ATS). Although the Court is unanimous that the ATS does not provide jurisdiction in this particular case, there is a 5-4 split on the reasoning.
Chief Justice Roberts authors the majority opinion, joined by Scalia, Kennedy, Thomas, and Alito. In addition, Justice Kennedy files a concurring opinion, and Justice Alito files a concurring opinion that Thomas joins.
Justice Breyer authors an opinion concurring in judgment, joined by Ginsburg, Sotomayor, and Kagan.
Monday, February 18, 2013
Symeon Symeonides (Willamette) has posted on SSRN his Twenty-Sixth Annual Survey of American Choice-of-Law Cases, which will be published in the American Journal of Comparative Law. Here’s the abstract:
This is the Twenty-Sixth Annual Survey of American Choice-of-Law Cases. It is intended as a service to fellow teachers and students of conflicts law, in the United States and abroad.
Of the 4,300 cases decided in 2012 by state and federal courts, this Survey reviews 1,225 appellate cases, focusing on those cases that may contribute something new to the development or understanding of conflicts law, particularly choice of law. Highlights include:
Monday, October 1, 2012
Parenthetically, there are some interesting exchanges for folks who are teaching (or taking) 1L civil procedure, on topics such as (1) waiver of defenses by omitting them from pre-answer motions [pp.3-4], (2) federal question jurisdiction under 1331 [pp.17-20]; (3) Erie and general common law [pp.18-19]; and (4) the 2011 personal jurisdiction decisions [p.54].
Thursday, September 20, 2012
Professor Harlan Cohen (Georgia) has posted on SSRN a draft of his article, International Law’s Erie Moment, which will be published in the Michigan Journal of International Law. Here’s the abstract:
Who fills international law’s gaps? Whether over the meaning of bilateral investment treaties, the standards regarding detainee transfer, or the rules of non-international armed conflict, courts and states are increasingly in conflict over the authority to say what the law is. With international law’s increased judicialization, two competing visions of international law have emerged: One, a gap-filled international law, in which law is developed slowly through custom, argument, and negotiation, and a second, gap-less, in which disputes are resolved through a form of common law adjudication.
Drawing on growing literature on the law outside of courts, particularly out-of-court settlements, the social norms of specialized business communities, and constitutional separation-of-powers, along with traditional customary international law, this paper demonstrates that the conflict between these two visions is much deeper than previously assumed. What emerges from these literatures are two radically different models of lawmaking, “negotiated law” and “adjudicated law,” that look different, act differently, rely on different sources of authority and legitimacy, and are to some extent in conflict with one another. Contrary to conventional wisdom, gap-filling by states and gap-filling by courts are not interchangeable.
The unrecognized differences between these two competing models of modern international law lie at the heart of longstanding doctrinal tensions over the nature/sources of customary international law and provide unseen inspiration for the brewing conflicts between courts and states for interpretative supremacy. International law has essentially reached its Erie moment. Only by recognizing the true nature of the conflict, only by recognizing the very different sources of judicial and state authority, only by forcing courts and states to justify their claims to interpretive authority, can we begin to resolve the tensions between these two models and discern the proper roles of courts and states on a modern international law.
Professors Emanuela Carbonara (University of Bologna – Economics) and Francesco Parisi (Minnesota) have posted on SSRN a draft of their paper, Rent-Seeking and Litigation: The Hidden Virtues of the Loser-Pays Rule. Here’s the abstract:
In the past couple of decades, scholars have predominantly employed rent-seeking models to analyze litigation problems. In this paper, we build on the existing literature to show how alternative fee-shifting arrangements (i.e., the American rule and modified English rule) affect parties' litigation expenditures and their decisions to litigate. Contrary to the prevailing opinion, we discover some interrelated advantages of the English rule over the American rule, including the reduction of litigation rates and reduction of expected litigation expenditures. Our results unveil a hidden virtue of the English rule, showing that an increase in fee-shifting may have the effect of reducing total litigation costs and lead to a desirable sorting of socially valuable litigation.
Wednesday, July 11, 2012
Now available on the Courts Law section of JOTWELL is an essay by Prof. Janet Walker (York University – Osgoode Hall) entitled Ethical Lawyering in the Clientless World of Class Actions in Canada. It reviews a recent article by Prof. Jasminka Kalajdzic (University of Windsor), Self Interest, Public Interest, and the Interests of the Absent Client: Legal Ethics and Class Action Praxis, 49 Osgoode Hall L.J. 1 (2011). The review begins:
It is surprising what you can learn by watching the next generation coming of age. In this way, lawyers in the United States can gain much from following the experiences of the Canadian legal community as it climbs the steep learning curve needed to formulate the parameters and protocols for complex litigation.
Civil litigation and the structure of the legal profession in Canada do not pretend to challenge American exceptionalism. There are important differences between the two legal systems. But they have enough in common that academics and others in the U.S. can gain useful insight into class actions practice by hearing how Canadians are currently struggling to meet the kinds of challenges that have long been the subject of debate in the U.S. In this fine article, Jasminka Kalajdzic explores a new subject, at least for Canadian lawyers: the special ethical concerns that arise for counsel in class actions.
Thursday, June 14, 2012
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)
Tuesday, May 29, 2012
Plaintiff, a construction company incorporated in the British Virgin Islands and headquartered in Israel, and defendant, the National Port Authority of Liberia, entered into a contract to build and operate a container park in Monrovia, Liberia's capital. Shortly thereafter, however, the government of Liberia changed, and the new government repudiated the contract for alleged failure to comply with competitive bidding procedures. Plaintiff initiated an arbitration proceeding in London, and the arbitrator awarded over $44,000,000 in damages to plaintiff. Plaintiff then filed an action to confirm the arbitration award against defendant in the D.C. district court. The district court dismissed the action for lack of personal jurisdiction.
On appeal, the D.C. Circuit held that the Foreign Sovereign Immunities Act provided statutory personal jurisdiction over the Port Authority, but that the Fifth Amendment Due Process Clause also required constitutional personal jurisdiction. The Port Authority, although state-owned, established its juridical separateness from the government of Liberia, which, as a foreign state, was not a "person" protected by the Fifth Amendment. Because the plaintiff failed to show minimum contacts of the Port Authority with the United States, the court affirmed the district court's dismissal for lack of personal jurisdiction. GSS Group Ltd. v. National Port Authority, No. 11-7093 (D.C. Cir. May 25, 2012).
Friday, April 20, 2012
On Wednesday, the Supreme Court of Canada issued a series of decisions on personal jurisdiction:
- Club Resorts Ltd. v. Van Breda, 2012 SCC 17
- Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18
- Breeden v. Black, 2012 SCC 19
According the Vancouver Sun, the decisions "set national standards, bringing much-needed guidance to a very complex area of Canadian law." Reports of widespread jealousy in the United States have yet to be confirmed. Cf., e.g., J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).
(Hat Tip: Linda Silberman)
Thursday, February 16, 2012
U.C. Irvine School of Law is hosting a conference entitled Human Rights Litigation in State Courts and Under State Law on Friday, March 2, 2012.
The panels look great:
9:00 a.m.-10:30 a.m. Panel 1
Human Rights Litigation in State Courts and Under State Law: The Experience So Far
- Michael Goldhaber
- Paul Hoffman
- Austen Parrish
- Moderator: Michael Robinson-Dorn
10:30 a.m.-10:45 a.m. Break
10:45 a.m.-12:15 p.m. Panel 2
Federalism and Foreign Relations Issues Raised by Human Rights Litigation in State Courts and Under State Law
- David Kaye
- Chimène Keitner
- Julian Ku
- Ed Swaine
- Moderator: Michael Ramsey
12:15 p.m.-1:30 p.m. Lunch
1:30 p.m.-3:00 p.m. Panel 3
Conflict of Laws and Doctrinal Issues in Human Rights Litigation in State Courts and Under State Law
- Patrick Borchers
- Anthony Colangelo
- Symeon Symeonides
- Moderator: Trey Childress
3:00 p.m.-3:15 p.m. Break
3:15 p.m.-4:45 p.m. Panel 4
The Future of Human Rights Litigation in State Courts and Under State Law
- Roger Alford
- Lee Crawford-Boyd
- Kristin Myles
- Beth Stephens
- Moderator: Chris Whytock
Monday, November 14, 2011
James Maxeiner (University of Baltimore) has recently published a book entitled Failures of American Civil Justice in International Perspective.
Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany, and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems. It is intended to be accessible to people with a general knowledge of a modern legal system.
Saturday, November 5, 2011
The Faculty of Law at the University of New South Wales is holding a conference entitled “Dispute Resolution in the Next 40 Years – Repertoire or Revolution.” It’s part of UNSW Law’s 40th Anniversary celebrations and will take place in Sydney, Australia on December 1-2, 2011. From the brochure:
Dispute Resolution is adapting and developing in response to the demands of Australian society and the global community. A greater range of dispute resolution mechanisms have developed and courts have sought to improve and streamline their procedures.
UNSW Law's 40th Anniversary Conference Dispute Resolution in the Next 40 Years – Repertoire or Revolution examines how dispute resolution may develop in the future and what the ramifications of those developments may be. This important question is addressed by the keynote speakers Lord Justice Jackson, Lord Justice of Appeal, UK Court of Appeal and author of the UK “Review of Civil Litigation Costs” and The Hon Thomas F Bathurst, Chief Justice, Supreme Court of NSW.
The conference brings together an outstanding collection of internationally and nationally renowned thoughtleaders to address important practical questions such as the future role of the judge, matching dispute resolution processes with disputes, the provision of access to justice to multiple claimants through class actions, the role of lawyers in alternative dispute resolution processes, the future options for international dispute resolution and reform of civil procedure through international comparisons.
More information available here.
(Hat Tip: Michael Legg)
Monday, July 11, 2011
Hot on the heels of last week’s D.C. Circuit decision on corporate liability under the Alien Tort Statute, the Seventh Circuit issued a decision today in Flomo v. Firestone Natural Rubber Co. (No. 10-3675). The opinion by Judge Richard Posner begins:
This suit under the Alien Tort Statute, 28 U.S.C. § 1350, pits 23 Liberian children against the Firestone Natural Rubber Company, which operates a 118,000-acre rubber plantation in Liberia through a subsidiary; various Firestone affiliates and officers were also joined as defendants. . . . The plaintiffs charge Firestone with utilizing hazardous child labor on the plantation in violation of customary international law. The Alien Tort Statute confers on the federal courts jurisdiction over “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.” The principal issues presented by the appeal are whether a corporation or any other entity that is not a natural person (the defendant is a limited liability company rather than a conventional business corporation) can be liable under the Alien Tort Statute, and, if so, whether the evidence presented by the plaintiffs created a triable issue of whether the defendant has violated “customary international law.”
(Hat Tip: Howard Bashman)
Friday, 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.
Thursday, June 16, 2011
Proficient in Italian? Now on SSRN is an article by Professor Antonio Gidi (University of Houston), Twombly e Iqbal: Il Ruolo Della Civil Procedure Nello Scontro Politico-Ideologico Della Società Statunitense (Twombly and Iqbal: The Role of Civil Procedure in the Political and Ideological Battle in American Society). It was recently published in Int’l Lis (Int’l Lis 104 (2010) (Italy)). Here’s the abstract:
L’autore indaga le sentenze “Twombly” (2007) e “Iqbal” (2009) della Suprema Corte federale degli Stati Uniti sotto un angolo visuale socio-politico, mettendo in evidenza il pericolo di una loro lettura strettamente tecnico-processuale e storico-comparata.
Con il conoscimento della struttura processual-giudiziaria e anche della sua complessità sociale e politica dell’ordinamento statunitense, si puó mettere in risalto da un lato, la prevedibilità delle due sentenze “Twombly” e “Iqbal” nel quadro politico attuale degli Stati Uniti e dall’altro, le significative e preoccupanti conseguenze del nuovo orientamento della suprema giurisprudenza federale statunitense sulla tutela, nel processo, delle parti meno abbienti e socialmente più deboli.
The author analyses the “Twombly” (2007) and “Iqbal” (2009) decisions from a socio-political perspective, highlighting the danger of a merely technical-procedural and historical-comparative analysis.
Only an in-depth knowledge of U. S. procedural and judiciary system as well as of its social and political complexity, highlights on the one hand, the foreseeability of the “Twombly” and “Iqbal” decisions in the present U. S. political situation and on the other hand, the meaningful and worrisome consequences of the U. S. Supreme Court’s new trend on the judicial protection of the poor and the weak.
Thursday, June 9, 2011
Professor Tanya Monestier (Roger Williams University) has posted on SSRN a draft of her article, Transnational Class Actions and the Illusory Search for Res Judicata, which is forthcoming in the Tulane Law Review. Here’s the abstract:
The transnational class action – a class action in which a portion of the class consists of non-U.S. claimants – is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign class members. The more likely the foreign court is to recognize a U.S. class judgment, the more likely that an American court will include those foreigners in the U.S. class action.
Current scholarship accepts propriety of the res judicata analysis, but questions the manner in which the analysis is carried out. This Article breaks from the existing literature by arguing that the dynamics of class litigation render the res judicata effect of an eventual U.S. class judgment inherently unknowable to a U.S. court ex ante. In particular, I argue that certain “litigation dynamics” – specifically the process of proving foreign law via experts, the principle of party prosecution, and the litigation posture of the action – complicate the transnational class action landscape and prevent a court from accurately analyzing the res judicata issues at play. This is exacerbated by the “structural dynamics” of class litigation: the complexity of foreign law on the recognition and enforcement of judgments; the newness of class action law in most foreign countries; and the distinction between general and fact-specific grounds for non-enforcement of a U.S. class judgment. Accordingly, I argue that U.S. courts should abandon their illusory search for res judicata. Instead, courts should avoid the res judicata problem altogether by employing an opt-in mechanism for foreign class plaintiffs, whereby such plaintiffs are not bound unless they affirmatively undertake to be bound by U.S. class judgment. An opt-in mechanism for foreign plaintiffs also provides several advantages over the current opt-out mechanism: it allows all foreign claimants to participate in U.S. litigation if they so choose; it provides additional protections for absent foreign claimants; it respects international comity; and it sufficiently deters defendant misconduct.
Thursday, May 19, 2011
Decision of Interest: Ninth Circuit Finds Personal Jurisdiction Over DaimlerChrysler in U.S. Lawsuit Arising From Argentina's "Dirty War"
Yesterday the U.S. Court of Appeals for the Ninth Circuit issued its decision in Bauman v. Daimler Chrysler Corp., No. 07-15386, ___ F.3d ___, 2011 WL 1879210. The unanimous opinion, authored by Judge Stephen Reinhardt, rejected the argument that DaimlerChrysler was not subject to personal jurisdiction in California. It begins:
Plaintiffs-Appellants (the “plaintiffs”), twenty-two Argentinian residents, bring suit against DaimlerChrysler Aktiengesellschaft (DCAG) alleging that one of DCAG’s subsidiaries, Mercedes-Benz Argentina (MBA) collaborated with state security forces to kidnap, detain, torture, and kill the plaintiffs and/or their relatives during Argentina’s “Dirty War.” Some of the plaintiffs are themselves former employees of MBA and the victims of the kidnapping, detention, and torture, while others are close relatives of MBA workers who were “disappeared” and are presumed to have been murdered. The only question before us is whether the district court had personal jurisdiction over DCAG. The district court granted DCAG’s motion to dismiss the case for lack of such jurisdiction. We conclude, however, that DCAG was subject to personal jurisdiction in California through the contacts of its subsidiary Mercedes-Benz USA (MBUSA). We hold that MBUSA was DCAG’s agent, at least for personal jurisdictional purposes, and that exercise of personal jurisdiction was reasonable under the circumstances of this case. [footnotes omitted]
The Ninth Circuit had issued an opinion in the case two years ago (from which Judge Reinhardt dissented), 579 F.3d 1088, but that opinion was vacated following the plaintiffs’ petition for rehearing. 603 F.3d 1141.