Wednesday, July 11, 2012

Walker on Kalajdzic on Ethics and Class Actions in Canada

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.


July 11, 2012 in Class Actions, International/Comparative Law, Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, June 14, 2012

Solicitor General's Brief in Kiobel v. Royal Dutch Petroleum

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.

For more coverage, check out SCOTUSblog (Lyle Denniston) and Lawfare (John Bellinger).


(Hat Tip: Jonathan Hafetz)

June 14, 2012 in Federal Courts, International/Comparative Law, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 29, 2012

D.C. Circuit Holds No Personal Jurisdiction Over the Port Authority of Liberia

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).


May 29, 2012 in Federal Courts, International/Comparative Law, Recent Decisions | Permalink | Comments (0)

Friday, April 20, 2012

Supreme Court of Canada Issues Major Decisions on Personal Jurisdiction

On Wednesday, the Supreme Court of Canada issued a series of decisions on personal jurisdiction:

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)

April 20, 2012 in In the News, International/Comparative Law, Recent Decisions | Permalink | Comments (0)

Thursday, February 16, 2012

Conference: Human Rights Litigation in State Courts and Under State Law

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


February 16, 2012 in Conferences/Symposia, International Courts, International/Comparative Law, State Courts | Permalink | Comments (0)

Monday, November 14, 2011

Maxeiner on American Civil Justice in International Perspective

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.

The book is available from Cambridge University Press and on Amazon.


November 14, 2011 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Saturday, November 5, 2011

Dispute Resolution in the Next 40 Years: Repertoire or Revolution? (Sydney, Dec. 1-2)

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)

November 5, 2011 in Conferences/Symposia, International/Comparative Law | Permalink | Comments (0)

Monday, July 11, 2011

Another Decision of Interest on the Alien Tort Statute: Flomo v. Firestone (7th Cir.)

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)

July 11, 2011 in Federal Courts, International/Comparative Law, Recent Decisions | Permalink | Comments (0)

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.

More coverage at Associated Press (Mark Sherman), Blog of the Legal Times (Mike Scarcella), How Appealing (Howard Bashman), and Volokh Conspiracy (Jonathan Adler).


July 8, 2011 in Federal Courts, International/Comparative Law, Recent Decisions | Permalink | Comments (0)

Thursday, June 16, 2011

Gidi on Twombly and Iqbal

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.


June 16, 2011 in International/Comparative Law, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Thursday, June 9, 2011

Monestier on Transnational Class Actions

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.


June 9, 2011 in Class Actions, International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

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.

Additional coverage can be found at How Appealing and Reuters.


May 19, 2011 in International/Comparative Law, Recent Decisions | Permalink | Comments (0)

Wednesday, May 4, 2011

Call for Papers and Proposals: "Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration"

From Professor S.I. Strong (Missouri) comes the following announcement:

Gary Born will give the keynote address at a symposium entitled “Border Skirmishes:  The Intersection Between Litigation and International Commercial Arbitration,” to be convened at the University of Missouri School of Law on October 21, 2011.  A works-in-progress conference and a student writing competition is being organized in association with this event, and the University of Missouri School of Law is issuing a call for papers and proposals.  

  • Proposals for the works-in-progress conference are due by May 20, 2011, with responses anticipated in mid-June.  The works-in-progress conference will be held at the University of Missouri on October 20, 2011, the day before the symposium itself.

Continue reading

May 4, 2011 in Conferences/Symposia, International/Comparative Law | Permalink | Comments (0)

Tuesday, March 15, 2011

Simard & Tidmarsh on Foreign Citizens in U.S. Class Actions

Professors Linda Sandstrom Simard (Suffolk) and Jay Tidmarsh (Notre Dame) have posted on SSRN a draft of their article Foreign Citizens in Transnational Class Actions, which will be published in the Cornell Law Review. Here's the abstract:

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries creates needless inefficiency. Using standard tools of economic analysis, we examine the benefits and costs of the consensus rule and compare them to the costs and benefits of other possible rules. In this comparison, the consensus rule tends to perform poorly. As a matter of theory, the most efficient rule for deciding which foreign citizens to include and exclude is evident, but real-world informational constraints frustrate the application of this rule in practice. Because no rule regarding the inclusion and exclusion of foreign citizens is the most efficient in all situations, we propose that courts use rebuttable presumptions: include foreign citizens with claims that are not individually viable and exclude foreign citizens with claims that are viable.


March 15, 2011 in Class Actions, International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Friday, February 18, 2011

Childress on the Erie Doctrine and International Law

Professor Donald Earl Childress III (Pepperdine) has posted on SSRN a draft of his article When Erie Goes International, which will be published in the Northwestern University Law Review. Here's the abstract:

This Article challenges the widely held belief that the Erie doctrine automatically applies in private international law cases – namely, cases where a United States federal court is asked by private litigants to apply foreign, non-United States law. Under the conventional understanding, the Erie doctrine not only requires federal courts to apply the law of the state in which the court sits but also to apply that state’s conflict-of-laws rules, even when those rules direct the court to apply the law of a foreign country. This Article argues that courts should question the mechanistic application of a doctrine announced in the 1930s (and updated to conflict of laws in the 1940s and 1970s) to the realities of private international litigation today, especially in light of more recent Supreme Court cases concerning constitutional constraints on choice of law. Among other findings, the Article provides empirical evidence uncovering a previously unrecognized connection in the scholarly literature: internationalizing the Erie doctrine may in part explain the increased use of the forum non conveniens doctrine by federal district courts. The Article also reframes the ongoing and contested scholarly debate between Professors Curtis Bradley, Jack Goldsmith, Harold Koh, and others regarding the application of Erie to customary international law in light of Erie’s application in private international law cases. The Article not only provides a new empirical and scholarly lens through which to view the international application of the Erie doctrine but also offers a suggested approach to be employed by courts when faced with such cases.


February 18, 2011 in Federal Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Thursday, October 28, 2010

Halberstam and Reimann on Federalism (comparative)

Daniel Halberstam and Mathias Reimann (University of Michigan) have posted Federalism and Legal Unification: A Comparative Empirical Investigation of 20 Legal Systems to SSRN.

How and to what degree do federations produce uniform law within their system? Our comparative empirical study addresses this question comprehensively for the first time by examining legal unification in twenty federal systems around the world. We present the means and methods of legal unification, the degree of legal unification of each system (and of particular areas of the law within each system), and a first attempt to explain the driving forces of legal unity and diversity in federations more generally.


October 28, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Monday, October 18, 2010

Knutsen on Deterence of Litigation in Canada

Erik S. Knutsen (Queens University Faculty of Law) has posted The Cost of Costs: The Unfortunate Deterence of Everyday Litigation in Canada to SSRN.

Costs today play a disproportionate role in many civil litigation decisions in Canada because of the inherent unpredictability built into the current overly complex costs system. Canada’s civil litigation system utilizes a fee shifting regime whereby an unsuccessful litigant must pay a proportion of the successful litigant’s legal fees. This costs system is designed to regulate litigation behaviour by deterring unmeritorious cases, by indemnifying successful litigants, by fostering efficient lawyer behaviour, by promoting settlement of disputes, and by ensuring access to the civil litigation system so that the cost of litigating is not out of reach for litigants. In today’s economy, however, the system is trying to do too much, and with too much at stake. The original system was put in place at a time when litigation costs were very often in reasonable proportion to the amount in dispute. Presently, the cost to litigate can quickly eclipse the value of what is at stake in the dispute. A summary judgment motion, for example, may cost upwards of the cost of a family vehicle for the average Canadian. In the minds of litigants and lawyers, unpredictable issues of legal costs often replace issues of substance at the heart of a litigated dispute. While the cost of civil litigation to an individual litigant has certainly increased over time, the increase is not due solely to the cost a litigant pays his or her own lawyer. An increase in the overall cost of litigation thus means an additional increase in costs the loser in a case must pay to the successful litigant, as well as to the loser’s own lawyer. If the loser is an average, middle-income earning Canadian litigating a standard contract or injury dispute, such a loss can be economically impossible to bear. Litigation costs through fee shifting have thus become a fundamental driving force in the Canadian civil litigation.

Courts in Canada exercise wide discretion in assessing costs through fee shifting and costs awards have become unpredictable as a result. This has led to an inability of litigants to ex ante predict their exposure to adverse cost awards. Risk averse litigants, especially those middle income Canadians with some financial exposure such as a house to lose, tend to shy away from the civil litigation system. This is how concern for costs can often eclipse the substantive rights being asserted in a particular case. Everyday litigants who are non-corporate individuals whose litigation costs are not covered by insurance cannot easily defray the financial burden of an adverse cost award. They are most likely to have cost concerns weigh heavily in the decision to advance a claim at all. However, should costs be driving litigation results? Should costs be driving access to the civil litigation system, particularly for the everyday litigants in Canada who have a house or modest savings to potentially lose?

Part I of this Article details how Canada’s fee shifting costs regime operates in a fashion to create a complex and unpredictable litigation dynamic. The Article explains the myriad of variables informing how legal costs are calculated in Canada and how lawyers, clients, and courts have difficulty in estimating financial exposure to such costs. In addition to the fee shifting system, the amount a litigant must pay her own lawyer plus Canada’s pre-trial settlement cost incentives also play large roles in how costs affect litigation decision-making in Canada. Part II of the Article attempts to define the everyday Canadian litigant who is most negatively affected by the current costs system because of an inability to internalize a negative costs award. The everyday litigant is in the most precarious position of potential litigants because costs drive a myriad of access to justice concerns for that group. Part III critically evaluates the costs landscape in Canada and concludes that costs, not the substantive legal claims of the litigants, are disproportionately driving the civil litigation system in Canada for everyday Canadian litigants. In short, costs have subsumed the substance of much Canadian litigation. This leads to not only over-deterrence of litigation in the name of settlement but to concerns about the ability of average Canadians to access the civil justice system for. Part IV evaluates possible fee regime models with an eye to informing modifications to Canada’s fee system. It recommends that Canada’s fee regime be reformed to allow for a hybrid, two-track approach. As a default, courts should adopt a one-sided pro-plaintiff fee shifting system as long as the defendant in litigation is able to somehow defray adverse cost awards through assets or insurance. If both plaintiff and defendant are litigants who cannot reasonably defray the cost of costs, a more American-style costs system of no fee shifting should govern. Settlement incentives should not be based on actual costs to litigate but instead should be a 10% uplift on final damages awarded at trial or settled. Part V concludes.


October 18, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Monday, September 27, 2010

Langer on The Political Branches Regulating Role in Prosecuting International Crimes

Professor Maximo Langer (UCLA School of Law) has posted "The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes" on SSRN. It will be published in the American Journal of International Law.

The abstract states:

Defenders of universal jurisdiction claim that it is a crucial tool to bring justice to victims, to deter State or quasi-state officials from committing international crimes, and to establish a minimum international rule of law by substantially closing the “impunity gap” regarding international crimes. Critics of the regime argue that universal jurisdiction disrupts international relations, provokes judicial chaos, and interferes with political solutions to mass atrocities. One of the issues missing in this debate is the role of the political branches, specifically the executive and the legislature. By identifying the main incentives for political branches in universal jurisdiction cases and explaining the relationship among these incentives, this article articulates a theoretical framework that (1) accounts for the current state of universal jurisdiction, (2) predicts how universal jurisdiction is likely to evolve in the future, and (3) provides what should be a starting point for any non-ideal-world normative assessment of universal jurisdiction as well as for the institutional design of the universal jurisdiction regime.

This article shows two ways in which political branches of individual States have acted consistently with the incentive structure this article identifies. First, relying on the results of a first-of-its-kind survey carried out for this project that aims at covering all universal jurisdiction cases brought since Eichmann, this article will show that universal jurisdiction defendants who have gone to trial are primarily Nazis, former Yugoslavs, and Rwandans. In other words, they are the type of defendants that the international community has most clearly agreed should be prosecuted and punished and that their own States of nationality have not defended - actors that make more likely that the political benefits of universal jurisdiction trials outweigh the costs. Those who fall outside these three categories have been nationals of States that have not exercised their leverage to defend their nationals abroad, or that have been too weak to stop trials from occurring. Second, relying on statutes, judicial decisions, and other materials in their original language, this article will show how these incentives explain State behavior through analysis of case-studies from five States - Germany, England, France, Belgium, and Spain.

This article also explores some of the more significant normative and institutional design implications of its theoretical framework and empirical findings. Key among these is the fact that universal jurisdiction will never establish a minimum international rule of law - that is, it will never substantially close the “impunity gap” regarding international crimes - given that high-cost, most mid-cost, and many low-cost defendants are beyond the reach of the universal jurisdiction enforcement regime. This article’s findings also suggest that a number of common criticisms of universal jurisdiction are unfounded, given that States have incentives to concentrate on defendants against whom there is broad agreement in the international community and whose own States of nationality are not willing to defend. For these reasons, universal jurisdiction is unlikely to lead to unmanageable international tensions, to judicial chaos, or to interference with political solutions to mass atrocities.


September 27, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 14, 2010

Amann on Women at Nuremberg

Professor Diane Marie Amann has posted "Portraits of Women at Nuremberg" on SSRN.  It will be published in the American Society of International Law Journal.

The abstract states:

This essay reflects ongoing research that investigates women who played roles in war crimes trials at Nuremberg, Germany, and situates those women within the context of social developments during the post-World War II era. Based on an autumn 2009 presentation at the Third International Humanitarian Law Dialogs, the essay builds upon the “Women at Nuremberg” series posted at IntLawGrrls blog. The essay mentions women who were defendants, journalists, or witnesses; however, it focuses on some of the women, mostly Americans, who served as prosecutors at Nuremberg.


September 14, 2010 in International Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 9, 2010

Erie, International Law and Guantanamo: Judge Kavanaugh's Opinion in Al-Bihani v. Obama

Last week the D.C. Circuit refused to grant en banc rehearing of its decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010). The denial of rehearing (available here) was accompanied by several statements by individual D.C. Circuit judges, including one from Judge Kavanaugh that opines on the relationship between Erie and international law. From Judge Kavanaugh’s statement (some citations omitted): 

[I]n light of the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), which established that there is no federal general common law, international-law norms are not enforceable in federal courts unless the political branches have incorporated the norms into domestic U.S. law. None of the international-law norms cited by Al-Bihani has been so incorporated into domestic U.S. law.

To be sure, there was a time when U.S. courts stated that customary international law was “part of our law” so that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.” The Paquete Habana, 175 U.S. 677, 700 (1900). But that oft-quoted statement reflected the notion, common in the early years of the Nation but now discredited, that international law was part of the general common law that federal courts could apply.

But as decided by the Supreme Court in its landmark Erie decision in 1938, the view that federal courts may ascertain and enforce international-law norms as part of the general common law is fundamentally inconsistent with a proper understanding of the role of the Federal Judiciary in our constitutional system. In Erie, the Supreme Court famously held that there is no general common law enforceable by federal courts. Erie, 304 U.S. at 78. The Court said that “law in the sense in which courts speak of it today does not exist without some definite authority behind it.” Id. at 79 (quotation omitted). Erie means that, in our constitutional system of separated powers, federal courts may not enforce law that lacks a domestic sovereign source.

Judge Kavanaugh also writes that Erie overturned the so-called Charming Betsy canon, under which federal courts should construe ambiguous U.S. statutes to be consistent with international law: “[I]n the post-Erie era, the canon does not permit courts to alter their interpretation of federal statutes based on international-law norms that have not been incorporated into domestic U.S. law. Indeed, since Erie was decided, the Supreme Court has applied that canon only to support the presumption that a federal statute does not apply extraterritorially.”


(Hat Tip: Jonathan Hafetz)

September 9, 2010 in International/Comparative Law, Recent Decisions | Permalink | Comments (0)