Shook Hardy's latest product liability newsletter includes an article about and links to a coalition of news groups seeking cameras at SCOTUS. The petition also is here. Televised proceedings on sky.com are now routine at the UK Supreme Court. To my knowledge, no one has ever offered a cogent reason for keeping the court in the dark.
The Chevron/Ecuador wars continue to rage, including a judgment enforcement effort in Ontario, Canada. The latter effort resulted in a ruling indicating Canada's courts may be open to judgment enforcement based on seizing a parent corporation's shares in a subsidiary corporation that was not involved in the underlying litigation. Mondaq includes a helpful summary article from Blakes.
Does choice of law really matter in m&a when the options are Delaware and New York ? A Kirkland & Ellis client advisory memo offers some insights into potentially meaningful differences.
The First Amendment has become a war horse ridden by many. Now a new question - do judges have First Amendment rights to comment on litigation before them?
Certainly most all members of the litigation industry fight hard to try to win comments and decisions from judges. Think Judge Jack and silica. And for years now, we've had judges out speaking at litigation conferences.
A post from the TortsProf blog brings news of an apparently interesting new book on torts. The introduction starts as follows:
"From Hart Publishing comes a new torts book and a discount for our readers:
What do mass torts have to do with arbitration? In some instances, quite a bit. The Chevron/Ecuador/Donziger circus masks interesting and significant legal issues regarding the intersections between arbitration rulings and judicial rulings. Indeed, within the matrix group of lawsuits, there was an arbitration ruling to enjoin enforcement of a judicial judgment entered in Ecuador.
The big picture legal issues related to arbitration are the subject of an upcoming book by Michael Goldhaber, and commentary and an online symposium at Opinio Juris. This page provides the starting point, and includes the following overview comments from Michael Goldhaber:
Recent posts at Opinio Juris cover various law-related aspects of an interesting looking new book on global trade. The book is by Anupam Chander, and is: The Electronic Silk Road: How the Web Binds the World Together in Commerce.
How to deal with "long term" risks and costs related to business operations? A proposed new mine in Minnesota exemplifies some of the topics that arise and are receiving increasing scrutiny. According to this October 5, 2013 StarTribune article by Josephine Marcotty, the proposed new mine would operate for perhaps 20 years. A draft regulatory report apparently will conclude that the mine and a related processing facility will need pollution monitoring and treatment for 500 years after closure. Topics now under consideration include when and how address long term funding needs for the pollution work. Another question is whether 500 years of future predicted future pollution work is deemed to cause the proposed mine to follow under state laws that regulate facilities that would need "perpetual" pollution work.
Key quotes from the article are set out below and illustrate part of the debate:
"The prospect of centuries of water treatment illustrates the scope of the environmental challenges facing what would be Minnesota’s first copper-nickel mine — and why it has generated intense environmental scrutiny and divided communities on the Iron Range. PolyMet is the first of many companies lining up to tap into one of the world’s largest copper-nickel deposits. The deposits offer the promise of a new era of mining for Minnesota, but one that comes with significant ecological risks for the wildest and most treasured corner of the state.
LAW360 includes an article - with links to opinions - on a BP ruling on the question of the ability of Mexican states to file suits for damage arising from the BP oil spill. Interesting to see other national and local governments becoming more interested in being a plaintiff.
Corporate structures continue to face new challenges as plaintiffs seek to hold parent companies liable for actions related to subsidiaries. A new ruling on this subject is from Canada, and arises in the context of alleged human rights violations by persons working for a subsidiary. Lawyers from Gowlings summarize the case in this article. The opinion is online; key excerpts from the Gowlings article are as follows:
Some interesting observations in A WSJ op ed piece on rising disability claims and expenses. The author is Michael J. Boskin, a Stanford professor with impressive academic credentials, but a chink in the intellectual portfolio for previously suggesting that it does not matter if a country produces computer chips or potato chips, a statement made while working for President Bush I.
One point that especially caught my attention is Professor Boskin's suggestion to start rating and charging industries based on experience in terms of the numbers of persons disabled (or allegedly disabled) by the industry. According to Professor Boskin, the Netherlands showed reduced claiming after experience rating was adopted. One wonders what the financial impacts would be for industries such as the oil and gas industry, or significant users or consumers of "toxins," such as asbestos, beryllium, some pesticides, or some chemicals.
Another notable point is Professor Boskin's observation that compensation systems are now "permeable." As he puts it:
"One fundamental lesson of the past decades is that the many overlapping benefit programs have become permeable. People figure out how to move from program to program, stretch boundaries and take the best option. When government is offering benefits—or green-energy corporate welfare, too-big-to-fail bank subsidies and tax breaks—people will find a way to take them."
The even larger point is that knowledge has become readily transferable and often very actionable. Thus, one might broadly observe that the litigation industry in general became more permeable, and the asbestos litigation industry in particular became more permeable over the last few decades. When Manville went into chapter 11, there were shifts in strategy for all members of the asbestos litigation industry. When class actions and mass filings were the rage, they grew. Then asbestos trusts grew, and the asbestos litigation industry changed again. Meanwhile, more and more plaintiff's firms now exist.
The same principles also appear to apply to other specific subsets of litigation. For example, securities fraud claims, failed bank claims, and antitrust claims. The claimants and payors are continually shifting their focus. Another example arises from priest sex abuse cases. The claims exploded quickly and then many shifted from the tort system to a bankruptcy trust compensation system.
The Quebec train disaster raises yet again the issue of underinsured or uninsured business operations. According to the latest story, the CEO now is starting to say the company may lack adequate insurance.
Uninsured or underinsured entities create losses for the direct victims of disasters, as well as for entities that end up being targeted as co-defendants because the primary defendant lacks the money to pay. These types of risks are recognized and addressed to some degree by state laws that require insurance in some settings. For example, state laws that mandate minimum automobile insurance. Or state laws that require physicians to carry minimum amounts of medical malpractice insurance, or that require lawyers to carry legal malpractice insurance. One has to wonder why some industries lack "nudges" or laws sufficient to cause purchase of adequate insurance or maintenance of ample cash reserves.
Corporate Families May Create Obligations and Liabilities Not Evident from Corporate Structure Diagrams
Corporate families with tiered structures create legal responsibility issues of many kinds. Sophisticated plaintiff's lawyers for injured persons are increasingly delving into the specifics, and finding that the overlapping structures create legal obligations and remedies probably not foreseen by many corporate lawyers. The obligations and remedies can arise when there are separate but overlapping functions, similar or identical directors, and varying chains of command and control.
On ongoing case in Delaware flags the issue in the context of worker's compensation claims. There, Mr. Mitchell died in a silo, crushed by tons of soybean meal. The ultimate parent company paid a worker's compensation claim, but ultimately plaintiff's counsel figured out that it appeared a different entity (a subsidiary) was the actual employer. Therefore, plaintiff sought other remedies against the parent entity. The parent objected, saying it was the employer. Not so, according to a Delaware trial judge who geld hearings, took evidence, looked at the relevant factors under Delaware law, and concluded that the subsidiary was the employer. The main opinion is here. Rehearing was denied with a brief opinion.
A bottom line for litigators? Among other things, we need to keep reminding our corporate brethren - and our clients - that the real world presents complexities that are not always evident from the boxes on corporate structure diagrams.
US Appellate Court Judge Suggests Development of Process for Certifying Questions of Law Between National Courts
Will we see development of a process for national courts to certify questions of law to each other? One federal appellate court judge in the US recently called for such a process, and did so in a concurring opinion. The concurrence is set out below in full.
As described by the NYT Dealbook column, the opinion turned on an issue of significance - the burden of proof on "English law related to fraudulent misrepresentation, which applied to the case. Judge Rakoff incorrectly told the jury that Terra Firma had the burden of proof in showing that it relied on Citigroup’s supposed misrepresentations, when according to English law, the burden fell upon Citigroup to prove that it did not lie."
A hat tip to Dealbook for flagging the ruling and Judge Lohier's concurrence.
LOHIER, Circuit Judge, concurring:
"I agree entirely with our resolution of the issue of English law involved here and concur fully in the majority opinion. I write separately to add that, as a result of commercial agreements and the growing number of international commercial disputes, we are asked with increasing frequency to decide issues that require us to determine and apply foreign law. This case illustrates the trend. Although the Federal Rules of Civil Procedure make it clear that “determining foreign law” falls well within the province of federal courts, Fed. R. Civ. P. 44.1, we will encounter more and more cases involving unsettled questions of foreign law that implicate important policy preferences of a foreign nation. When faced with difficult questions of state law, we have a well-developed, successful system of certifying the question to state courts that promotes the development of state decisional law by state courts and strongly reflects principles of comity and federalism. Previous opinions and academic journals have adequately described that state certification system, and I do not need to do so again here. In the context of cross-border commercial disputes, there is every reason to develop a similar formal certification process pursuant to which federal courts may certify an unsettled and important question of foreign law to the courts of a foreign country. Fortunately, in this case, the question appears to have been neither unsettled nor especially important to the development of English law."
The Drug and Device blog has a valuable new post for those on the defense side in drug and device litigation. They compiled and linked to pro-defense MDL summary judgment rulings arising in MDLs for drug and device issues based on state law. Set out below is exactly what they did - go to their blog for the results:
The Morrison ruling pushed overseas many securities claims formerly brought in the US. It's a classic example of "be careful what you wish for." Now, as covered by Alison Frankel, mass action litigation is heating up in the UK against RBS. Kevin LaCroix also laments the spread at D & O Diary.
Perhaps we soon will hear that London's High Court is a "judicial hellhole"?
The UKSC has a brief but interesting article on air pollution issues reaching the UK Supreme Court. It's always good to get a reminder that this is a broad issue.
Winds of change are blowing. Last year, a widely respected business law professor wrote a little book titled "The Shareholder Value Myth." In her book, Professor Lynn Stout argued that there is no valid legal precedent for the concept of giving control to the desires of short-term investors, such as hedge funds. It's a cogent, easy to read book, and well worth the time.
Today, the NYT's DealBook column includes Andrew Sorkin reporting on Marty Lipton writing a memo that tees off against the short-term thinking that has hedge funds trying to dictate outcomes to Apple as to its hoard of cash. This is not a new view - Mr. Lipton's view often are made public, such as his prior advice on fending off hedge funders. Mr. Sorkin's column also points out fairly parallel comments by Chancellor Leo Strine. Meanwhile, Joe Nocera of the NYT previously covered Professor Stout's book, in a column with a retrospective look at having been around when T. Boone Pickens was one of the early barbarians gathering at corporate gates. Mr. Nocera's column also collects cites and links to other scholarly articles on the shareholder value issues.
Why are shareholder value myths relevant to mass tort lawyers? Why should inside and outside lawyers think or care about the winds of change for the shareholder value myth? Because winds of change go in many directions. Winds of change are blowing - or will blow - across many areas of law, including product liability and mass tort rules. Today's supposedly certain black letter rule could be tomorrow's discarded precedent. Today's "no brainer" could be tomorrow's bad decision. Short-term thinking is once again becoming riskier.
DRI's For the Defense for February 2013 includes an interesting article on Switzerland's hostility to non-Swiss persons taking testimony in Switzerland. The article is by Swiss lawyers, and is at page 74. The article is not yet online, but will be along with other issues of the journal. Not a surprising state of affairs for a secretive tax haven.
Open Access to Law Continues to Expand - The UK Supreme Court Uses YouTube to Create More Open Access to Information About Judgments
Open access to information. It's a prime tenet of the Internet. It's fostering science through wide and virtually instant communication of massive amounts of scientific data through open access journals such as the Public Library of Science, commonly known as PLoS.
The UK Supreme Court also gets "open access," as described in recent posts on the UKSC Blog. As described in this post, the UKSC is now using YouTube to disseminate its judgments. The post also goes on describe even more information that could be communicated, such as hearing transcripts. Dissemination on YouTube follows up on one of the Court's members (Lord Neuberger) previously commenting on the need for more public dissemination of information abouts its workings and judgments, all covered in this post by the UKSC blog. The following is a key quote from Lord Neuberger's comments, as provided by the blog:
"Judgments are the means through which the judges address the litigants and the public at large, and explain their reasons for reaching their conclusions. Judges are required to exercise judgement – and it is clear that without such judgement we would not have a justice system worthy of the name – and they give their individual judgement expression through their Judgments. Without judgement there would be no justice. And without Judgments there would be no justice, because judicial decisions, at least in civil and family law, without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible. Such accessibility is part and parcel of what it means for us to ensure that justice is seen to be done, to borrow from Lord Hewart CJ’s famous phrase."
The practice of law continues to evolve alongside globalization. Now, persons embarking on a legal education may choose a course of study aimed at licensure as a lawyer in both the US and common law provinces in Canada. The opportunity arises from broad-minded thinking at the Arizona State University Sandra Day O'Connor College of Law. The course of study "is intended to prepare students for admission in both countries within the traditional three-year J.D. timeframe." The full story is here at Law.com. The story also highlights other processes underway to increase cross-border licensure.
Caveat/disclosure: I'm an unpaid member of the Advisory Board for the Center for Law, Science and Innovation at the Arizona State University Sandra Day O'Connor College of Law.
There are many things happening in the world of lawsuits against sovereigns, and the top of the list includes claims and collections against Argentina on its many years of failure to pay some bondholders. The point of this post is not to reinvent the existing commentary. The point instead is to spread the wry thought that flashed across my mind when reading an Opinio Juris post about Argentina threatening to sue Ghana over Ghana aiding anti-sovereign debt collection efforts by holding an Argentine warship which docked in Ghana.
The wry thought? Some day asbestos plaintiff's lawyers may seek to impound Russian or Chinese ships in order to collect on mesothelioma claims arising from Chinese and Russian asbestos mines owned or controlled by sovereign entities. Product liability suits against some sovereigns likely will be a part of mass tort litigation, due either to direct ownership/control of mines, or "aiding and abetting claim" of the sort already being filed against some sovereigns regarding financial frauds.
China Orders Risk Assessments Ahead of Projects (and a Reminder Never to Assume Others Know History Some of Us Take for Granted)
Even China is starting to act on the recognition of the long-term costs and risks of pollution. Over the past few decades, the nation's industrialization has included repeating the Western mistakes of creating massive pollution and early deaths or diseases. More recently, thousands of sometimes violent Chinese protesters have emerged to challenge new projects perceived as harmful to persons in the vicinity. Now, the New York Times and a Chinese environmental group are reporting that the Chinese government is said to have announced non-specific laws requiring "social risk assessments" before major new projects are undertaken.
As the saying goes, every journey begins with a single step. It will be interesting to see how the Chinese fare with their environmental regulatory journey. One wonders how much the "average" Chinese person knows about similar journeys in other nations. Recently, here in the US, I've learned that at least some subgroup of our young people have really no idea about the environmental journey in the US. That lesson came home to me when I recently guest taught a small, third year elective class at a law school class. During the class, I offhandedly mentioned Love Canal. The response was blank stares. So, I asked the obvious question and all the students confirmed they had never heard of Love Canal. The next question was whether they had had heard any stories about the Cuyahoga river burning, or knew of the book "Silent Spring." Again, all said no. Then I pursued the same conversations with a couple of young lawyers (in their 30s), and my mid-teenage daughters. The answers were the same.
What was that saying we learned in the first week of law school, but I still forget more often than I want to admit ? Never assume anything.
"The University of Pennsylvania Journal of International Law will host a symposium entitled: Mass Torts in a Shrinking World, November 2, 2012. You can find the program here."
The agenda also is pasted below, and includes some interesting questions/topics.
The UKSC blog has an interesting new post with links to some background information about the English Arbitration Act of 1996 and other sources for information on international arbitration. The post includes links to a speech by the apparently key drafter of the statute.
An article highlighted this week on Mondaq brings news that Italy has a newish statute requiring certified email addresses for government communications to corporations. Imagine how litigation will change when similar rules are imposed for service of process and discovery demands.
Corporate Counsel this morning includes an article asserting that US style lobbying will be increasing in Europe. One example arises from issues about banning use of plastic bags. More issues are predicted. Litigation no doubt will be part of the tool kit as the lobby and litigation industries continue to grow. Ont the other hand, as the article points out, EU elections are publicly funded and so the EU avoids the current US issues with campaign contributions, SuperPACS, etc.
This post at Opinio Juris provides a paragraph about an upcoming event by - and links to - a group hoping to create a World Environmental Court because environmental issues cross borders.
North Carolina Whistle-Blower Statute Voids Confidentiality Terms in Private Contracts and Garners More Bad Press for Baptist Medical Center
Amazing how bad decisions can extend themselves. For any easy example, think about athletes that make one mistake and then immediately commit a foul or some other mistake because they are embarrassed about the first mistake. For a litigation and business example, consider the latest chapter in the saga of Baptist Medical Center's effort to avoid the consequences of its mistakes in overcharging for health care.
In short, some of Baptist's bad acts were caught by a non-employee whistleblower who reported the bad acts to the state. Having gone that wrong, Baptist then compounded its woes by suing the whistle-blower. That suit went nowhere, and more bad press followed.
Then, Baptist became the target of a separate class action seeking damages for overcharging its employees for healthcare. Baptist finally became more savvy and settled the suit, but then screwed up the deal terms and garnered yet more bad press. The judge then ruled against Baptist on its painfully lame argument, netting more bad press for Baptist.
Could it all get worse? Yes! Now, Baptist is back in the media as North Carolina passed a whistle-blower statute addressed precisely at Baptist over-charging the state, and so the entire tawdry story is being told yet again. If someone ever writes a case book on litigation blunders, the Baptist Medical affair seems a fine candidate to obtain the fame of a poster child.
On the merits, the statute is interesting because whistle-blowers are sometimes are subjected to suits claiming that blowing the whistle constitutes a breach of contract or a tort. That tactic is now tougher to use in North Carolina because the staute has just passed a statute that voids private contracts which impose confidentiality terms on contracts involving its state health plans. The state may later pass a broader bill applicable to contracts outside of health plans. The latest part of the story is told in more detail in this news article from the Winston-Salem Journal.
Conclusion? Health care whistle-blowers in North Carolina now have some valuable protections. For the rest of the world, the lesson is that it's often best to cut losses by owning up to a foul instead of litigating. Thus, multiple studies have proved that hospitals and doctors best deal with malpractice incidents by apologizing and paying. (Also think about Jamie Dimon's so far more or less succesful mea culpa for the London Whale affair, but even that may yet blow up again if the losses reach $ 9 billion instead of $ 2-3 billion.) By making the same compound foul mistake that athletes sometimes make, the entity may set in motion a chain of events that will extend its losses out exponentially and might even take it off the playing field. Indeed, one wonders how many future news and blog articles will for how many years repeat the story of Baptist Medical mistreating the whistle-blower, Joe Vincoli.
A New York Times article takes Delaware to task for racing to the bottom as a home for tax dodging and corporate secrecy. One Delaware blogger has complained the attack is a "smear" piece but the points he raises are at most modest quibbles arising from other states taking some action to stop the tax dodging. Key excerpts follow:
The UK Supreme Court heard argument last week in a case raising important issues about when the courts of the UK and Wales will accept cross-border bankruptcy court judgments. The case is Rubin v. Eurofinance SA. The issues presented will take in increasing importance due to globalization, and cross-border mass torts that will bankrupt some multinationals. The intermediate Court of Appeals accepted the judgement in a rather unusual opinion tied around a belief in bankruptcy court exceptionalism.
For a UK view and summary of the case, see this post on the UK Supreme Court blog. For a US view of a paul Weiss lawyer sharply criticizing the intermediate decision, see this article from the Columbia Law Review. For a similarly sharp UK attack, see this article from a Freshfields lawyer.
One might view this case as one aspect of the growing use of legal tourism (that is - forum shopping) to find the most favorable venues for a particular legal problem. Delaware created an entire industry of chapter 11 cases by And various companies have moved their headquarters around the globe to acheive legal goals, often tax-related. And now individuals from Ireland are using legal tourism (forum shopping) by moving to the UK to wipe out debt that's too hard to be rid of in Ireland.
Corporate Counsel has an interesting new post on Canada's impending anti-spam law. It's interesting because it's an opt-in regime which requires proof of consent instead of the much-evaded and ignored US "opt-out" statute. The approach is reminiscent of ISO and SOX - have a process and do it right. According to the article, the penalties and class-action terms are potentially significant. Canada is no longer the sleepy neighbor.
A new post by Michael Goldhaber at AmLaw provides a fascinating story regarding efforts to sue regarding alleged mining company atrocities in the Congo. The story covers wide ground but is focused on whether Canadian courts will hear the case. Today, it's a global chess board.
Kevin LaCroix at D & O Diary reviews a recent, broad assertion of jurisdiction by a Canadian court asked to hear securities misrepresentation claims against a Chinese entity. The post also reviews factors relevant to whether Canada will become a favored forum for securities litigation.
It's always nice to have a cite for a rule even if the rule seems obvious. An Australian appellate decision - analyzed here by Coleman Greig- holds that of course computers can be accessed if a party claims there was tampering with an email.
Courtesy of a post at Opinio Juris, here's word of a new book which sounds both timely and astute. The post provides some good background.
The book is:
The abstract is:
"We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is confusing, and we cannot expect territorial borders to solve all these problems because human activity and legal norms inevitably flow across such borders. At the same time, those hoping to create one universal set of legal rules are also likely to be disappointed by the sheer variety of human communities and interests. Instead, we need an alternative jurisprudence, one that seeks to create or preserve spaces for productive interaction among multiple, overlapping legal systems by developing procedural mechanisms, institutions, and practices that aim to manage, without eliminating, the legal pluralism we see around us. Such mechanisms, institutions, and practices can help mediate conflicts, and we may find that the added norms, viewpoints, and participants produce better decision making, better adherence to those decisions by participants and non-participants alike, and ultimately better real-world outcomes. Global Legal Pluralism provides a broad synthesis across a variety of legal doctrines and academic disciplines and offers a novel conceptualization of law and globalization."
The UKSC blog includes this interesting post on an "advert" for the job of President of the UK Supreme Court.
A new report is out in the UK regarding judges, merit selection and diversity. The conclusion is that the bench is too old, and too white. This blog post covers the story, and is from the UKSC blog which covers the UK Supreme Court.
A difficult topic is how to integrate good environmental practices into the DNA of developing nations. And, we all have a stake because air pollution is not local, and the oceans are global commons subject to destruction by any bad actor. The new book mentioned below addresses the UK approach to externalizing good practices.
Environmental Integration in the EU's External Relations
Beyond Multilateral Dimensions
Gracia Marín Durán and Elisa Morgera
The book examines the integration of environmental protection requirements into EU external relations focusing on unilateral, bilateral and inter-regional instruments, which have been less explored than the multilateral dimension of EU environmental policy. The book also explores for the first time the complex interplay and mutual influences between EU environmental integration initiatives and environmental multilateralism. On the one hand it identifies the legal and other instruments used by the EU to support the implementation of multilateral environmental agreements in third countries (particularly developing ones). On the other hand, it singles out the legal and other tools employed by the EU as a means to build partnerships with third countries in order to influence ongoing multilateral negotiations concerning the environment and sustainable development, or to contribute to the development of new international environmental norms in the absence of such multilateral negotiations. Ultimately, the book traces the significant evolution of the various tools deployed by the EU to integrate environmental concerns in its external relations, with a view to identifying emerging challenges and future directions.
Gracia Marín Durán is Lecturer in International Economic Law, University of Edinburgh School of Law.
Elisa Morgera is Lecturer in European Environmental Law, University of Edinburgh School of Law.
US Supreme Court Orders Reargument on US Courts Hearing Claims Arising Between "Aliens" from Events Outside the US
Once upon a time, the US Supreme Court slowly took up narrow issues. But today, the Roberts Court aggressively reaches out and renders sweeping rulings. Thus, it was surprising - but understandable - that the Court has ordered for next fall re-argument of the Kiobel case on the scope of our Alien Tort Statute. The order calls for expanded briefing on the jurisdiction of our federal courts to hear claims involving a claim by "an alien" against "an alien" with respect to events occurring outside the US. More specifics are here from Lyle Deniston writing on the SCOTUS blog.
One would think some analogies will be drawn to tort cases involving claims against manufacturers outside the US. Global immigration patterns also seem germane - indeed, all of our founders were immigrants.
Discussion of a New Treatise on Extraterritorial Application of Human Rights Treaties - Opinio Juris Covers It In Detail
Do you remember your law school course on international human rights treaties? Neither do I. Most of us over 40 do not have such a memory because the course did not exist. But today some number of law students will learn about the treaties through courses and work. For the rest of us, there's an apparently strong new treatise on the subject by Marko Milanovic.
In a post at Opinio Juris, Professor Milanovic provides some comments, including the following apt observation about the increasing prominence of human rights law:
"The book’s main focus is on case law, and most of the case-law that I examine is of fairly recent extraction. It appears that the problem of the extraterritorial application of human rights treaties has been growing progressively more acute in the past decade or so. It is indeed rather startling that such a fundamental issue regarding the scope of application of these treaties has not been definitively resolved much earlier during their life-span. One, almost trite response to this observation would be that in the age of globalization states are increasingly affecting the human rights of individuals outside their borders, and that this explains both the increase of litigated cases on extraterritorial application and the growing importance of the issue generally."
Opinio Juris and EJIL: Talk! are happy to announce that over the next few days we will both be hosting a discussion of Marko Milanovic’s recently published book: Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford Univ Press). Marko’s book examines the question when a State owes human rights obligations under a treaty to persons located outside its territory. This is a question on which there has been conflicting case law and much confusion.
This [book] attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties’ extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.
A very distinguished group of scholars, from both sides of the Atlantic, will offer their views on Marko’s book and on this vexed question of extraterritorial application of human rights obligations. On EJIL: Talk!, Yuval Shany (Hebrew University of Jerusalem), Vaughan Lowe (Oxford) and Irini Papanicolopulu (Milan-Bicoca and Oxford) will offer their views. On Opinio Juris, it will be Sarah Cleveland (Columbia), Kal Raustiala (UCLA) and OJ’s own Peggy McGuinness (St John’s). We are grateful to them for agreeing to participate in what I am sure will be a fascinating discussion.
The discussion will start with an introduction by Marko (on both blogs) of his book. Our commentators will weigh in with comments through the rest of this week. Marko will respond to their comments early next week. Readers are invited to join in the discussion.
Opinio Juris includes this new post on a new article on targeted killing. The article is said to be quite good.
Interesting new posts at Opinio Juris about a new book that sounds fascinating to read if there were more time in life. Here are excerpts describing the Nuremberg story as told by Kevin Jon Heller:
"Although the twelve U.S. Nuremberg trials judged seven times as many defendants as the International Military Tribunal (IMT) and addressed a broader spectrum of international criminal law issues, including the first genocide prosecutions and the establishment of important principles of medical ethics, they have wallowed in comparative historical obscurity. The absence of meaningful coverage is ironic given, as Kevin notes in his important new book, that chief prosecutor Telford Taylor predicted that many volumes would be written on them and that the government deliberately employed experienced civilian judges, rather than military officers, to ensure they would produce substantive written judgments. But until now, lawyers and scholars interested in these trials had very limited options. One could attempt to wade through the fifteen volume, 15,000+ page, “Green Series” providing “the official abridged records” of the trials. One could consult the summary reports of nine of the twelve trials available in the United Nations War Crime Commissions’ fifteen volume series “Law Reports of Trials of War Criminals” (which omit the Medical, Pohl, and Einsatzgruppen cases from formal coverage). Or one could refer to one of a very small number of books dealing wholly or in part with several individual trials as well as Telford Taylor’s parochial memoirs.
The major achievement of Kevin’s book is to provide what none of the other sources can — an overall discussion and scholarly analysis of the entire NMT process in a single reasonably well indexed volume. Among the book’s many valuable contributions are:
(1) Identifying the unique legal standing of the NMT, which were neither truly international courts, like the IMT, nor national tribunals. Instead, Kevin concludes, these were “inter-allied special tribunals” relying on the Allied Control Council’s sovereign legislative authority in the wake of the disintegration of the central German government, based on the concept ofdebellatio.
(2) Providing a concise history of the NMT process, including the development and evolution of the overall World War II war crimes trial program from the initial Allied decisions to conduct trials to the IMT and subsequent devolution of authority to national tribunals. Although I had a general familiarity with this subject, I still found much to be learned from this history, including particularly details about how both deliberate policy decisions and practical realities determined which cases and defendants were actually tried before these tribunals. Kevin provides useful details about the overall organization of the prosecution and tribunals, staffing, and budget issues.
(3) Describing the factual background of each case, including who the defendants and judges were, what offenses were charged, and the outcome including a helpful appendix identifying the charges and verdict/sentence for each individual accused.
(4) Critically assessing theNMT’s jurisprudence through close analysis of the written opinions produced in each of the cases. It is in this area that Kevin undoubtedly makes his greatest contribution. While some parts of the book could have been written by a competent historian, the sophisticated legal analysis constituting the heart of the book could only have been produced by a real expert on international criminal law.
(5) Documenting how the evolving geopolitical realities of the emerging Cold War resulted in both scaling down the overall scope of the trials and ultimately, to the early release of most defendants sentenced to long terms of imprisonment. Anyone who has seen the classic motion picture, Judgement at Nuremberg, a fictionalized account based loosely on the “Justice Trial,” is aware that these pressures existed, but Kevin documents exactly how they came to bear both directly and indirectly, including through the personal prejudices and fears of several individual judges rather than just via “outside” interventions as portrayed in the film.
(6) Assessing the overall legacy of the NMT, including specifically the influence that the judgments have had on modern international criminal law through critical analysis of citations to these trials by contemporary courts, including a specific (and highly critical) focus on the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY)."
No introduction is needed to understand the following excerpts from this post by Kevin Jon Heller, a legal scholar focused on many aspects of international law, including ATS litigation. His criticism of the 11th Circuit does leaves one to wonder just what the panel was thinking in not bothering to cite any law:
"Against my better judgment, I read the 11th Circuit’s opinion in Mamani v. Berzain, the Bolivian ATS case. I say against my better judgment because reading American judges on international law is kind of like listening to Kevin Costner play Robin Hood — you vaguely recognize the referent, but it is still painful to the ear. It’s bad enough that American judges consistently get international law wrong, as evidenced by the woeful Talisman Energy decision about the mens rea of aiding and abetting. But at least the Second Circuit tried to get the law right — it didn’t understand the international materials it cited, but at least it identified and addressed them. The 11th Circuit, by contrast, makes the Second Circuit seem like Ian Brownlie. It made no attempt at all to grapple with the international materials on crimes against humanity. Indeed, reading the opinion, you would have no idea that any such materials exist: although the court says that “[t]o determine whether the applicable international law is sufficiently definite, we look to the context of the case before us and ask whether established international law had already defined defendants’ conduct as wrongful in that specific context (pp. 16-17), there is not a single citation in the entire decision to any international source. No case. No convention. No UN report. No international-law scholar. Nothing. (emphasis added and Brownlie link inserted)
Here's a promotion for a new book on International Humanitarian Law and Terrorism.
A group of legal scholars are out with a new book said to provide a comprehensive account of international law as used by the US Supreme Court. There's an ongoing discussion of the book at Opinio Juris, an international law blog. Set out below are excerpts from a blog post by one of the editors; reading a few of the blog posts leaves the impression that the the book is a timely and extensive success.
"We also noticed that these competing claims were sometimes difficult to assess because there was no comprehensive account of the Supreme Court’s use of international law throughout its history. This book, International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011) seeks to fill that gap. To carry out the project, we were fortunate to assemble a distinguished group of contributors with expertise in international law, foreign affairs law and legal history, each of whom contributed one or more original essays to the book.
The book’s organization is broadly chronological, beginning in Part I with an assessment of the Court’s use of international law from the Court’s inception to 1860. Parts II through IV cover, respectively, the years from the Civil War to the end of the nineteenth century (1861-1900); the first half of the twentieth century through World War II (1901-1945); and the post-war years to the century’s end (1946-2000). Part V examines the leading post-2000 cases in light of historical practice. Although the dividing lines between historical periods are concededly somewhat artificial, the book is deliberately designed to devote substantial attention to the period from the Civil War to the end of World War II, which seems somewhat under-examined by prior scholarship as compared to the Founding era and the modern period.
Within the chronological periods, the book further subdivides the Court’s treatment of international law into substantive categories: treaties, direct application of customary international law, and the use of international law in constitutional and statutory interpretation. For each of the periods before 2000, it also includes a chapter of historical commentary addressed to wider political, legal and social developments. For the post-2000 period, recognizing that it is more difficult to achieve historical perspective on recent decisions, it features more opinionated and provocative essays designed to present a range of reactions to the leading cases."
It's partnering with the University of Queensland's TC Beirne School of Law in Brisbane, Australia, to launch a new, four-year joint juris doctor and master of laws program.
Under the program, American law students will spend three years at Washington University, where they will complete their J.D., then spend a fourth year at the University of Queensland, where they will get an LL.M. Australian students will spend three years at the University of Queensland, where they will obtain a bachelors of law before completing an LL.M at Washington University.
"Our alliance with the University of Queensland will help prepare students from both universities for successful careers in an ever globalized world," said Washington University Law Dean Kent Syverud. "The TC Beirne School of Law is one of the elite law schools in Australia, with a global reputation for attracting the top students from Queensland and from across Australia."
It's not unusual for American law schools to partner with schools outside the United States for joint programs or research collaborations, though most schools of late have been forging relationships with institutions in Asia — most notably in China. Last month, law deans from nine U.S. schools met with 10 deans from Chinese law schools to discuss future collaborations and the joint promotion of the rule of law.
Syverud said that the University of Queensland was an attractive partner because its "ambitious global vision of the law school and its faculty complements that of Washington University."
In addition to the new joint degree program, Washington University and the University of Queensland law faculty and students will have opportunities for exchanges and research collaborations."
Karen Sloan can be contacted at firstname.lastname@example.org.
An email landed in the inbox today for a free sample issue of this new law journal focused - apparently - on the rule of law. The journal concept seems intriguing. So, the text of the email is set out below.
Hague Journal on the Rule of Law
Sample issue online
The rule of law and legal pluralism
The latest issue of the Hague Journal on the Rule of Law (HJRL) features a section of the rule of law and legal pluralism. You can read the following fascinating articles free of charge for a limited period.
The Rule of Law and Legal Pluralism in Development - Brian Z. Tamanaha
Sustainable Diversity in Law - H. Patrick Glenn
Historical Perspectives on Legal Pluralism - Lauren Benton
The latest issue of HJRL also features a section on the practical issues of rule of law promotion. This section and the rest of this issue is available online without charge, until the 1st of August 2011.
You can manage your preferences on Cambridge Journals Online by following this link.
Recommend HJRL to your serials librarian
Recommendations from faculty members are the primary influence on librarians' budget decisions so to ensure you have full access to this journal, follow this link to recommend a subscription to your librarian now.
We hope you enjoy this sample issue.
Remember that law school class time many thought wasted when focusing on choice of law and jurisdiction issues ? Today, the class time could be far more interesting if professors and books are covering the impacts of globalization and modern corporate behavior. One example, covered in this post about a book by Prof. Lynn LoPucki, involves the Delaware bankruptcy courts trying to attract litigation through a "race to the bottom" that resulted in lousy but predictable outcomes in chapter 11 cases. And, this prior post covered examples of Australian and US corporations moving from county to country in search of more favorable law and lower taxes.
Today, the topic arises again because of new examples. Thus, the SEC has recently proposed regulations aimed at reigning in compensation payments for executives at hedge funds. Meanwhile, the UK's FSA last week released this new report on systemic risks posed by hedge funds, with some thoughts on regulation. On the other hand, however, some hedge funds are fleeing regulation, as illustrated by this recent Financial Times article by Sam Jones on hedge funds fleeing London to move to Malta to obtain lesser regulation and lower taxes. Set out below are two excerpts from Mr. Jones' article. The article illustrates the point that some hedge funds are in fact fleeing regulation. Should that be legal ? How do governments effectively make it "illegal?"
" David Butler, founder of the consultancy Kinetic Partners, which advises hedge funds on their domicile and tax arrangements, said: “It’s dozens, rather than hundreds, that are moving there at the moment, but opening an office there gives managers flexibility. [They] are sitting in London, saying: ‘I have too much country risk here – the tax rate is through the roof, the regulations are too intrusive’.”
The Maltese financial regulator, the MFSA, has meanwhile been keen to ape the kind of “light touch” regulation of the hedge fund industry once propounded by the UK’s FSA – one of the foundations of London’s success as Europe’s main hedge fund centre.
Here is the link to download from SSRN a paper on where Chinese tort law might be headed over time. Hat tip to Pointoflaw for pointing out the article.
"Be Careful What You Wish For In Litigation" - Might that Rule Apply to the Iqbal/Twombly Pleading Standard ?
At a recent asbestos litigation conference, one of the speakers reminded everyone of the old maxim to " be careful what you wish for" in litigation. In that vein, consider the current US legislative battles about the Iqbal/Twombly pleading standard that makes it materially harder for plaintiff's to allege a complain that withstands a motion to dismiss. In this dawning age of global litigation, choice of venue and law issues are increasingly important due to global financial markets. Within that realm, consider the importance of the pleading standards as applied to, for example, the fact pattern set out in the text below from this interesting article about an investigation into an investigation by the SEC, with both investigations related to a sudden plunge in the price of a biotech stock.
Suppose the report referred to below is made public, with or without full facts being disclosed in the report . Under the new Iqbal/Twombly pleading standards in the US, would incorporation of the report be enough for a complaint to survive a motion to dismiss ? If not, are US firms going to find themselves facing class actions in Europe, Australia or other venues where pleaidng standards are now or may be less demanding than the Iqbal/Twombly standard ? Will suits seek out countries where class action laws exits and litigation funding is far more accepted than it is in the US ? If that happens to one degree or another, will US defendants be more or less happy than they were under the old Conley v. Gibson pleading standard ?
I'm not sure how this all turns out. But I am starting to wonder if the Iqbal/Twombly standard will end up being one of those wishes that it is later regretted by US industry. In short, it seems to me the wish for the higher pleading standard could end as a wish that ultimately accelerates litigating tort claims outside the US, . Outside the US, defendants certainly will have work to do to try to obtain the benefit of the Daubert standard so much loved by defendants.
Dendreon stock mauling probed by regulators
By Matthew Goldstein
NEW YORK (Reuters) - A lightening fast sell-off of shares of biotech company Dendreon <DNDN.O> last April is drawing scrutiny from U.S. securities regulators and the independent monitor assigned to keep tabs on those regulators, said people familiar with the matter.
They said an investigation by the Securities and Exchange Commission into the still unexplained trading event, during which shares of Dendreon plunged more than 69 percent in 70 seconds, is ongoing.
It is not clear if the SEC inquiry into the incident, which some academics and investors have blamed on a combination of short-sellers and high-frequency trading programs, will lead to an enforcement action, said these same sources.
SEC spokesman John Nester declined to comment.
The SEC investigation partially overlapped with an inquiry conducted last summer by SEC Inspector General H. David Kotz to determine whether securities regulators were paying enough attention to the matter.
In December, Kotz submitted a confidential report on the results of his inquiry to SEC Enforcement Director Robert Khuzami, the sources said.
The SEC is considering a Freedom of Information request from Reuters to release the inspector general's report. But a person familiar with the situation said regulators will likely deny the request on the grounds that the report discusses an ongoing probe.
The SEC cited a similar reason for rejecting an earlier FOIA request from Reuters, seeking information about any complaints filed by investors over the April 28 incident.
It is unusual for the SEC's inspector general to conduct an inquiry into the agency's handling of an ongoing investigation. Kotz's office initiated the investigation at the request of an investor and Sen. Charles Grassley, according to sources and the inspector general's semiannual
Grassley spokeswoman Beth Levine said his office had not received a copy of Kotz's completed report.
The Iowa Republican has had a history of taking issue with the pace of SEC investigations and asking Kotz's office to review the agency's handling of enforcement matters.
A Dendreon spokeswoman declined to comment on the investigations.
Last April, the $16 plunge in shares of the Seattle-based biotech generated a good deal of head-scratching on Wall Street. That's because in little over a minute, the equivalent of an entire day's worth of trading activity in Dendreon shares took place before Nasdaq Stock Market officials halted the stock.
Stock market officials initially suspected the rapid-fire selling was sparked by a so-called fat finger trade, or a broker putting in an erroneous order to sell too many shares. But Nasdaq officials, without issuing any comment, did not void any of the trades.
The April 28 plunge of Dendreon shares coincided with speculation in the market that the company was going to report poor test results that afternoon for its prostate cancer drug Provenge. In fact, the opposite occurred, and the company reported generally positive test results.
Once trading was allowed to resume, the stock quickly regained all of its losses. But the freak sell-off resulted in losses for retail investors who had so-called stop-loss orders with their brokers to sell shares at a predetermined price.
When a stock plunges quickly, it can trigger a stop-loss order, a sale at a previously designated price intended to limit losses. A stop-loss order can cause an investor's shares to be sold at price lower than the one he wanted.
Reuters reported in October that many investors with stop-loss orders lost money in the sell-off and some complained to regulators and asked them to look into the matter.
There have been numerous theories for the unusual trading event.
Some investors have blamed the sell-off on a so-called bear raid by short-sellers looking to profit from a precipitous decline in a stock. Others attribute the ferociousness of the selling to computer-driven high-frequency trading programs that scan the markets looking to take advantage of trading trends.
James Angel, a professor at Georgetown University's McDonough School of Business, previously told Reuters that high-frequency trading programs may have exacerbated the plunge when the algorithms these trading firms use all glommed onto the same trend.
(Reporting by Matthew Goldstein; Editing by Steve Orlofsky)
Disability Rights - Conference on the United Nations Convention on the Rights of Persons with Disabilities
Disability rights and international aw are coming together in an upcoming seminar. "The Disability Rights Legal Center, along with Loyola Law School Los Angeles is hosting the International and Comparative Law Review Symposium on the significance of the United Nations Convention on the Rights of Persons with Disabilities. The event will take place from 10:00 AM - 5:00 PM, Friday, March 19, 2010 at Loyola Law School Los Angeles." Go here to register or for more details.
See the cite and link below for a recent online comparative law paper that provides a broad brush picture of the similarities and differences between personal injury compensation approaches of the United States, various EU countries using civil law, and the UK and New Zealand.
In particular, the paper addresses differences in approach to using "lump sum" payments versus a stream of future payments, calculation of future financial loss in relation to children, deductibility of collateral benefits from awards of damages, and approaches to comparative fault. The article also touches briefly on subrogation in some countries.The paper thus provides helpful context for evaluating the various national approaches to dealing with long tail tort issues.
Margaret Devaney, A Comparative Assessment of Personal Injuries Compensation Schemes: Lessons for Tort Reform?, vol. 13.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (September 2009).