Archive for
February, 2007

Mexico Can’t Dismiss HIV+ Soldiers

by Kevin Jon Heller

Japan to Join the ICC

by Kevin Jon Heller

If You Don’t Suceed At First. . . James Baker to Head Up National War Powers Commission

by Peter Spiro

International Law Faculty Hires

by Roger Alford

Opinio Juris Not Blocked in China

by Kevin Jon Heller

Progress on Defining the Crime of Aggression — But at What Price?

by Kevin Jon Heller

The Problem of International Parental Child Abduction

by Roger Alford

ICC Releases Darfur Indictments – Sudan Minister Named

by Julian Ku

Everyone an American

by Peter Spiro

We Read the ICJ’s Genocide Judgment So You Don’t Have To

by Julian Ku

ICJ: Serbia Did Not Commit Genocide; But Should Have Prevented It

by Julian Ku

Kent on Boumediene/Odah Guantanamo Litigation

by Andrew Kent

[Andrew Kent is a Climenko Fellow at Harvard Law School and beginning next year will be a professor of law at Fordham Law School]

Let me start by thanking Opinio Juris for giving me a chance to offer some preliminary thoughts about the D.C. Circuit’s recent decision in Boumediene / Odah Guantanamo detainee litigation.

1. The threshold statutory issue decided by the D.C. Circuit does not seem difficult. I don’t see a plausible argument that the Military Commissions Act (MCA) did not withdraw the court’s jurisdiction over these cases. In an amusing little spat that illuminates this point, the majority and the dissent in Boumediene / Odah insisted on emphasizing different phrases in the MCA to find that jurisdiction had clearly been withdrawn (Compare Majority at 10-11 & nn. 3 & 4 and Dissent at 9-10). I find it hard to believe that even the Supreme Court – which displayed its ability to creatively interpret statutes in Rasul v. Bush and, arguably, Hamdan v. Rumsfeld as well– will agree with the detainees’ reading of the MCA.

2. The hard and interesting questions concern, of course, the implications of Congress’s withdrawal of jurisdiction. The majority and dissent each proceeded on the assumption that the MCA was not a formal congressional suspension of the writ based on the existence of the predicates mentioned in second clause of the Constitution’s Suspension Clause (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Rather, the majority and dissent both asked whether, as an ordinary statute affecting the availability of the writ, the MCA unconstitutionally suspended the privilege of the writ. This inquiry obviously requires a baseline. But as the government correctly noted in one of its D.C. Circuit briefs, “The Supreme Court has never decided whether the meaning of the Suspension Clause was fixed in 1789, or whether the Clause might evolve consistent with the expansion of statutory habeas over the course of American history.” The detainees picked the 1789 baseline (which the Supreme Court indicated in INS v. St. Cyr is the floor, but maybe not the ceiling). The detainees argued that Rasul had confirmed that these detainees “were entitled to the writ under the common law, and would have been entitled to the writ as of 1789 when the Constitution was adopted;” and that the MCA is unconstitutional because their baseline “right to the writ as of 1789 is protected by the Suspension Clause.” Addressing and rejecting the detainees’ argument, the majority opinion reviewed old, mainly English, precedents and treatises and held that “given the history of the writ in England prior to the founding [of the United States in 1789], habeas corpus would not have been available in 1789 to aliens without presence or property within the United States” (Op. at 17). The dissent responded that the “well-considered and binding dictum in Rasul” (Dissent at 1) to the contrary should bind the D.C. Circuit and, in any event, while “[t]here may well be no case at common law” in England before 1789 that is factually four-square with the Guantanamo detainees’ situations, “[t]he question is whether by the process of inference from similar, if not identical, situations the reach of the writ at common law would have extended to the detainees’ petitions” (Dissent at 12-13). Parsing a number of eighteenth- century English cases, and “piecing together the considerable circumstantial evidence” (Dissent at 13), the dissent found that the English common law writ would have reached aliens at Guantanamo.

Let me put aside the procedural question of whether the Rasul majority’s dictum about the reach of the common law English writ of habeas corpus circa 1789 is binding on the D.C. Circuit. Focusing just on the substantive issue, I think it is absurd that a vastly consequential U.S. constitutional decision would be made by a handful of judges (a majority of two on an appellate court or five on the Supreme Court) on the basis of thin “circumstantial” evidence from a few old English sources. I will first discuss the historical evidence and then suggest why I think there is a better way to decide this constitutional issue.

As I argued in a recent article (cited for a different point by the Boumediene / Odah majority opinion in footnote 11), the better reading of the available historical materials suggests that the common law English writ would not have been available to aliens, especially enemy combatants or prisoners of war, in foreign territory outside the dominions of the British Crown. But that conclusion is not free from doubt, given the paucity and opacity of the English sources. I am not aware of any cases, and the parties and judges did not cite any, that actually addressed whether an alien then detained outside the realm or dominions of the British Crown was entitled to petition for a writ of habeas corpus. It is as clear as these things get that noncombatant, non-enemy aliens within the realm and dominions of the Crown were thought to be under the “protection” of the “laws” and that most likely included habeas. There were a few famous eighteenth and early nineteenth-century instances where such aliens within Britain successfully invoked the writ. The scanty available evidence suggests, however, that an American prisoner held in Britain in the late eighteenth century during the Revolutionary War would likely have been denied the benefit of the writ.

But the English (and American) cases discussing these issues are few, and the case reports brief and sketchy, making it difficult to say with certainty exactly what English law was. And more generally, it is a mistake to think that British “constitutional” law – made up of an uncertain amalgam of statutes, customs, practices, judicial decisions, and theories drawn from famous historical episodes – had wholly fixed and knowable content. For example, the American Revolution occurred as a result of, among other things, bitter and unresolved disputes between colony and metropole about first principles of English constitutional law, such as the extent to which unwritten customary privileges and rights of Englishmen were available to colonials and, if so, trumped Parliament’s legislation. A seemingly basic issue like whether Parliament could legislate at all regarding the internal affairs of the colonies was disputed. To this day, legal historians argue about whether Britain or America had the better of these legal arguments. More to the point, the availability, scope and procedural protections of habeas even for Englishmen in England see-sawed throughout the seventeenth and eighteenth centuries, as a result of shifting power, interests, and alignments between Parliament, the Crown (or the dictator during Cromwell’s time) and the Crown’s various civil, criminal, military, administrative and ecclesiastical courts. (Historian Leonard Levy’s book Origins of the Bill of Rights has a succinct discussion of this.) In treason cases and others that the Crown alleged involved the safety of the state, judges sometimes accepted the Crown’s say-so and denied the prisoner any habeas review; other times judges required factual detail about the reason for detention from the executive (see Levy). How these vicissitudes would have affected the availability of habeas for unlawful combatant aliens in the realm or dominions, much less abroad, is probably impossible to say with certainty. Certainly the few English cases do not definitively resolve the issues and tell us the exact content of the common law writ in 1789.

And the translation of all of this to the American context is quite difficult. For example, prior to American independence, the most famous liberty-expanding improvements to the English writ were statutory; there were disputes between colonial Americans and British officials about whether Americans benefited from those statutes, or only from the common law writ. The detainees in Boumediene / Odah seek to avoid this issue by arguing only that the “common law” writ – not the English statutory writ – would have protected them in 1789. But it seems quite difficult to determine how English judges would have decided the few cases relied upon by the detainees which are perhaps very roughly analogous to the facts of Boumediene / Odah – much less a directly on-point hypothetical case – if there had not been the famous statutory proclamations about the importance and availability of the writ, even if the precise procedural improvements introduced by statute were not technically at issue in these cases. Moreover, it is an exceedingly hard question whether the precise type of sovereignty that the United States exercises over Guantanamo Bay makes that territory sufficiently analogous to the overseas dominions of the British Crown in which the common law writ was apparently available in 1789. Given the stakes of the U.S. constitutional question we are addressing, I don’t believe that this and related questions can be answered satisfactorily with a few eighteenth-century English case reports and, more importantly, I don’t believe that they should be answered in that manner.

There is perhaps a better way to think about the issue – better methodologically because it gives primacy to the written text of the Constitution, and better substantively because it allows Congress instead of courts to make the relevant policy choices. In my recent article, I examined the text, structure and original eighteenth century meaning of the Suspension Clause and the larger Constitution of which it is an integral part. I argued that the Constitution created a system in which robust individual constitutional rights – including habeas rights – were available for people, whether citizens or aliens, within the United States, but that U.S relations with aliens abroad were governed only by the much more flexible and inconsiderable protections of international law, diplomacy and policy choices by the political branches of the U.S. government. I further argued that the Constitution diffuses, checks and balances government power domestically, in order to preserve domestic liberty and the rule of law, but concentrates and frees external powers to allow the political branches of the U.S. government to act forcefully and coercively against the outside world to protect the freedom and liberty of people in the United States. Turning to the Suspension Clause, recall that it provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” I argued that:

The [Suspension] Clause allows suspension only in cases of “Rebellion or Invasion.” Both terms refer to conflicts internal to the country. If the only two permissible triggers for suspension are internal events, it follows that the writ cannot be suspended based on purely external threats. . . . If courts extend constitutional rights to aliens abroad that are enforceable through habeas, and if the availability of some habeas review is found to be constitutionally required (that is, protected from “suspension”), there could occur situations where the lack of a domestic invasion or rebellion prevent suspension, even if the political branches correctly determined that “the public Safety . . . require[d] it.” In this situation, the Judiciary would be encroaching on the primary province of the Executive and Congress: the political branches are textually and structurally given the responsibility for national protection, especially beyond the borders of the United States. This structural reasoning provides a way to think about the availability of the writ outside the fifty states of the United States. Assuming that the writ should not be available anywhere that the political branches could not, if the public safety required, temporarily suspend it, the writ should only be available in territory over which the United States exercises such pervasive and persistent sovereignty that a hostile military incursion could be fairly described as an “invasion” vis-à-vis the United States, or an armed insurrection could fairly be described as a “rebellion” vis-à-vis the United States.


I don’t want to pretend that this is a perfect answer to the difficult questions raised by Guantanamo. In fact, it is not clear to me what result would flow from applying the “test” I suggest to Guantanamo. I think there’s a reasonable but not overwhelming case to be made that, under this test, Guantanamo would be U.S. territory and the writ would be available. My larger point is that it’s important to shift the focus away from a few old English case reports and towards the core textual and structural features of the U.S. Constitution, a document designed both to protect liberty and to protect national security of the United States.

3. I want to conclude with a few thoughts about the future. First, I am interested in the potential for interplay between detainees’ Suspension Clause arguments and the Supreme Court’s recent statutory interpretation practices. Some commentators have praised the Court’s creative statutory interpretation in Rasul and Hamdan as the exercise of passive virtues that avoided the need to decide difficult and controversial constitutional issues. Similarly, the Court has declined to date to decide the difficult constitutional question whether the Suspension Clause protects 1789 habeas or evolving and expanding habeas. If the Court in the future decides that the Suspension Clause evolves, any previous decision whether to expand the scope of habeas has suddenly become a fateful question of potential constitutional magnitude. If habeas evolves and is protected from suspension as of x date, every time before and until x date that Congress is deemed to have added protective procedures or expanded the availability of the writ to new classes of persons, it has effectively amended the Constitution and prevented future Congresses from changing their mind. In these circumstances, judicial statutory interpretation can have the effect of making constitutional law. A court’s previous creative interpretation and expansion of habeas statutes would all of the sudden look pretty activist and, to my mind at least, unwise.

Until and unless the Supreme Court clarifies that the Suspension Clause protects 1789 habeas, not evolving habeas, I think the Supreme Court is duty bound to be less willful in its interpretation of congressional statutes that concern habeas. Until the fixed-evolving issue is clarified, it might arguably be appropriate for courts to require a very clear statement from Congress before habeas statutes are interpreted to expand the writ. Similarly, it might arguably be appropriate for courts to stop requiring a clear statement before statutes are interpreted to contract the availability of habeas. The Constitution gives Congress authority to control the jurisdiction of the lower federal courts (and, in some instances, the Supreme Court). Congress has authority to decide whether to suspend habeas corpus entirely. These “greater” powers suggest that Congress too has the “lesser” powers; as long as it stays above the 1789 baseline, Congress should be allowed to make the policy decisions of potential constitutional magnitude about the expansion or contraction of the writ.

Second, I think it’s likely that interesting alien vs. citizen equality claims will be litigated and perhaps decided soon. Hamdan’s brief to the Supreme Court, for example, argued that reading the Detainee Treatment Act of 2005 to strip federal courts of habeas jurisdiction over his case would violate Equal Protection guarantees found in the Fifth Amendment to the U.S. Constitution. He argued that the distinctions that determined whether habeas was available or not (alien vs. citizen, Guantanamo versus in the United States) could not constitutionally be drawn by Congress. The Court did not reach that issue, but that is certainly not the last time the argument will be made. As I noted in my recent article, the Supreme Court has never held that aliens outside the United States or its territories have individual constitutional rights. And a number of important statutes relating to national security presuppose that they do not. Holding that aliens outside the U.S. and its territories do in fact have individual constitutional rights would be vastly consequential, impacting and – I believe, hampering – law enforcement, intelligence, military and diplomatic functions of the U.S. government in myriad, significant ways. The precise question regarding the constitutional status of the specific piece of property at the Guantanamo Bay naval base is a close and difficult one. Guantanamo is, in many respects, U.S. territory. But detainees in this and future conflicts can and will make similar arguments about other U.S. bases and outposts in other countries which are leased long-term from host nations or held de facto for the long-term by the U.S. military.

I think it would be dangerous and unwise for the Supreme Court to decide that potentially all aliens in the world outside the U.S. and its territories have individual constitutional rights. Clear and sensible lines need to be drawn to determine what is or is not a territory of the United States in which aliens have constitutional protections. I am working on an article that argues that these lines should be drawn by the political branches of the U.S. government through treaty or statute, or by constitutional amendment, but certainly not by the courts. So I’ll have more to say about this issue later. If the Supreme Court does, in the near future, hold that aliens outside the U.S. and its territories have individual constitutional rights, it will likely be in the form of the mushy ad hoc judicial balancing that Justice Kennedy has signaled he favors (see his concurrences in Rasul and United States v. Verdugo-Urquidez). Martin Lederman blogging at Balkinization appears to agree that the Kennedy approach is the one the Court will take. The amount of uncertainty (and litigation) that such an approach would create for the U.S. military, intelligence community, law enforcement, etc. would, to my mind, be intolerable.

New International Law Blog — IntLawGrrls

by Kevin Jon Heller

Reviving the Franco-American Alliance Against Britain

by Julian Ku

ATS Decision in Child Abduction Case Considers “Safe Conduct” Violation

by Tom Lee

[Tom Lee is a professor of law at Fordham Law School.]

On February 16, 2007, the Sixth Circuit (Keith) published a unanimous opinion in Tavaeras v. Tavarez, a suit brought under the Alien Tort Statute (28 U.S.C. 1350). That hoary and storied statute states: “The district courts shall have original jurisdiction of 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 Sixth Circuit understood the Supreme Court’s holding in Sosa v. Alvarez-Machain, to authorize aliens to sue under the ATS for two categories of violations of the law of nations: (1) the three violations of the law of nations—“piracy, offenses against ambassadors, and violations of safe conducts,” which the Sosa Court believed the First Congress intended to redress in 1789 when the ATS was enacted; and (2) “in addition to these traditional laws of nations violations, other causes of action based upon present-day law of nations [that] ‘rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms.’”

Mr. Taveras, the Dominican father, alleged that his estranged wife, Ms. Tavarez, also a Dominican national, had abducted their two children to the United States. She had entered the USA on a visitor’s visa but never returned to the Dominican Republic (DR), opting to live with relatives in Ohio. Mr. T pled subject-matter jurisdiction under the Alien Tort Statute (28 U.S.C. 1350) and the International Child Abduction Remedies Act (ICARA), the implementing statute for the Hague Convention of 1980 on Child Abduction, to which the United States was a signatory. The district judge rejected the ICARA hook, reasoning that the United States “has not declared its acceptance of the Dominican Republic’s accession to the Hague Convention.” Mr. T did not appeal that ruling. The lower court also rejected the ATS hook – and consequently dismissed the case for lack of subject-matter jurisdiction, because Mr. T’s “allegations did not qualify as a violation of any treaty or the law of nations.” The Sixth Circuit affirmed. (A minor technical quibble here is whether Mr. T’s allegations of substantive violations under the treaty and the law of nations were plausible enough under Bell v. Hood to sustain jurisdiction under §1350 or, for the treaty claims, the general federal-question statute, even though the claims would not survive a motion to dismiss on the merits.)

Mr. T made two arguments for a qualifying law of nations violation under the ATS: one each in the “traditional” and “present-day’ flavors. First, he argued an old-school safe conduct violation. “[B]y fraudulently misrepresenting her intent to abandon her foreign residency and permanently immigrate to the United States, she had surely violated the U.S. immigration statute. She had also, he continued, “deprived the United States of its right under the law of nations to make a valid determination as to whether the U.S. wanted to grant safe conduct to a cross-border child abductor.” In other words, Mr. T’s theory of a safe conduct violation understood it to refer to an infraction of the sovereign’s right to control its borders—a law of nations right that was “embodied” in the domestic statute. Second, he argued that there was a present-day “international consensus”—of which the Hague Convention’s provisions were probative—against cross-border parental abduction by an individual like Mrs. T with full custody rights. The Sixth Circuit rejected that argument, concluding that the Hague Convention (and so controlling convention) was clear that a “parent without custody rights, such as Mr. Taveras, is not entitled to the remedy of return or nay other judicial remedy.” The Court’s persuasive reasoning in this respect is similar to that in Sosa and dozens of other cases dealing with similar present-day law of nations ATS claims, and so I will not engage in further analysis of it here.

What is novel and noteworthy about the Sixth Circuit’s decision is its rejection of Mr. T’s theory of a qualifying safe-conduct violation. (The theory certainly seems reasonable, in light of the fact that commentators have not much examined safe conducts.) In so doing, the Court relied on an article published a few months ago, The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830 (2006), in which I asserted, based on a close reading of works by the Englishman Blackstone and the Swiss Vattel that were heavily used by the founding group, that a safe-conduct violation referred to a non-contract injury to the person or property—Blackstone’s very definition of a “tort”—of an alien traveling to, within, or out of a host sovereign’s territory or areas controlled by its military forces under circumstances in which international law recognized a duty on the part of the host to ensure the alien’s safety or security. With respect to any friendly or neutral aliens, the duty was viewed as practically universal, although safe-conduct documents similar to modern passports were used for verification purposes. With respect to enemy aliens, the obligation was more circumscribed, for instance, to prisoners of war, civilians, and truce negotiators. On this view, the Sixth Circuit rightly rejected Mr. T’s claim.

The most important, big-picture ramification of the Sixth Circuit’s adoption of this understanding of the safe-conduct violation—despite its rejection of Mr. T’s specific claim, is the potential for ATS liability with respect to any tort understood simply as an injury to one’s person or property, so long as the alien plaintiff alleges a U.S. sovereign nexus. There would be no need to allege a free-standing substantive international law claim. Put another way, on my view, the statutory words “in violation of the law of nations or a treaty of the United States” serve to mark which aliens could sue: for instance, an enemy alien soldier within the United States could not sue if he were shot by a U.S. soldier, while a friendly alien could sue if he were to suffer the same injury, notwithstanding the fact that the latter’s harm would not necessarily suffice to ground an international law claim. Of course, in modern practice, the Federal Tort Claims Act would bar such claims, although it would not necessarily bar claims by private contractors, whether U.S citizens or aliens, who may be acting on the government’s behalf. It remains to be seen whether ATS litigants will avail themselves of this opening created by the Sosa opinion confirmation of the ATS’s role in policing the “traditional” age-of-sail violation of the safe conduct despite its anachronistic fit to the modern phenomena of massive cross-border movements of peoples and goods.

I thank Roger Alford for bringing this case to my attention and for inviting me to blog on it. Readers who would like to learn more about safe conducts may consult my article cited above (in which I propose that the ATS was exclusively about safe conducts), which may also be downloaded from SSRN here.

Canada’s Supreme Court Strikes Down Detention Regime

by Kevin Jon Heller

Extraterritorial Prosecution for Murder

by Roger Alford

Judging Jessup

by Duncan Hollis

Big Week in the Hague

by Julian Ku

Today in History: Adams-Onís Treaty of 1819

by Roger Alford

Would Assassinating Iranian Civilians Be Legal? (Updated)

by Kevin Jon Heller

Why Hawks (Almost Always) Win: The Cognitive Psychology of the Use of Force

by Peggy McGuinness

With Friends Like These…

by Peggy McGuinness

Buddy, Can You Spare a Dime for Body Armor?

by Kevin Jon Heller

Top 10 “Winners” of the Iraq War

by Kevin Jon Heller

D.C. Circuit Dismisses Guantanamo Petitioners Under Military Commissions Act

by Julian Ku

ICSID Arbitration Filed Over South Africa’s Black Empowerment Program

by Roger Alford

Delegation Workshop at Duke

by Peter Spiro

Forgotten Japanese Latin-American Internees: The Long Reach of Justice

by Peggy McGuinness

New International Law Blog

by Chris Borgen

Virgin Hot Coffee With A Spot of Impeccable Treaty Interpretation

by Roger Alford

Global “Leaders” Reach Climate Change Deal

by Julian Ku

Gonzales in Argentina: Dealing with a Bad Reputation

by Peggy McGuinness

Habeas Relief Precludes Transfer of American to Iraqi Court

by Roger Alford

More on Prime Time Torture: “24” and the Myth of the Ticking Time Bomb

by Peggy McGuinness

Prime Time Torture

by Roger Alford

NYC to U.N.: Please Don’t Leave Us!

by Julian Ku

LiveBlogging Ken Roth

by Julian Ku

North Korea’s “Agreement” on Nuclear Disarmament

by Duncan Hollis

North Korea Agrees to Nuclear Deal

by Julian Ku

Guess Which Way the ICJ Will Rule on Bosnia Genocide Case?

by Julian Ku

Obama and International Law

by Peter Spiro

More on Action Against Iran

by Peggy McGuinness

“Victory is Not an Option”: General Odom’s Op-Ed

by Chris Borgen

Reason #345 to Love New Zealand — and Dislike Australia

by Kevin Jon Heller

ICJ’s Bosnia Genocide Ruling Will Be Released February 26

by Julian Ku

U.S. Court Blocks Transfer of U.S. Prisoner to Iraqi Government

by Julian Ku

Legal Research Using Google Books

by Roger Alford

Who Publishes in International Law Journals: An Unsystematic Survey

by Peter Spiro

Litigation Beyond the Technological Frontier: Voda v. Cordis and Claims of Foreign Patent Infringement

by Jay Thomas

[Jay Thomas is a professor at Georgetown University Law Center where he teaches, among other things, international intellectual property law.]

The U.S. Court of Appeals for the Federal Circuit recently held that a U.S. district court did not possess subject matter jurisdiction over assertions of foreign patent infringement. In Voda v. Coris Corp., the Federal Circuit rejected the district court’s preliminary exercise of supplemental jurisdiction over foreign patent claims, concluding that exercising such jurisdiction constituted an abuse of discretion under 28 U.S.C. § 1367(c). Because the court of appeals did not speak to diversity jurisdiction, and also left open the possibility that supplemental jurisdiction may be available under differing, unspecified circumstances, Voda v. Cordis appears to raise as many questions as it answered.

The case concerned several patents owned by Dr. Jan Voda, an Oklahoma-based cardiologist who invented an improved catheter useful for coronary angioplasty. Believing that Cordis Corp., the Florida-based medical device arm of Johnson & Johnson, infringed his U.S. patents, Voda brought suit in the Western District of Oklahoma. Voda ultimately obtained a multi-million dollar damages award from the trial court based upon the willful infringement of Cordis. Prior to receiving this judgment, however, Voda also sought to amend his complaint to assert patents on the same invention that he had procured in Britain, Canada, France, and Germany.

Voda’s claims of infringement overseas arose in a world that lacks a unified patent system. Inventors instead must procure patents on a national basis. Once granted, patents have for the most part been enforced through parallel infringement suits in different national courts. Voda asserted not only that the district court possessed authority to hear the cases on a consolidated basis, but that doing so would be fair and efficient for both litigants. The district court agreed with Voda and concluded that it possessed supplemental jurisdiction over his foreign patent claims. But it also certified an interlocutory appeal. The Federal Circuit subsequently overturned the lower court in a 2-1 decision.

Writing for the majority, Judge Gajarsa concluded that the district court abused its discretion. The court of appeals turned first to a leading international agreement concerning patents, the Paris Convention for the Protection of Industrial Property. Although the majority observed that the Paris Convention contained no express provision allocating jurisdiction to hear patent infringement claims, the court nonetheless inferred a principle that one jurisdiction should not adjudicate the patents of another. Analogizing patents to land grants, the majority also relied upon the local action doctrine to conclude that assertion of foreign patent infringement claims would be inappropriate. Further doubting that consolidated multinational patent litigation would be more convenient to the litigants, and expressing concern that such adjudication would interfere with the authority of over sovereigns, the Federal Circuit vacated the order allowing Voda leave to amend his complaint.

Judge Newman responded with a well-reasoned dissent that exposed numerous weaknesses in the majority’s reasoning. Courts routinely apply foreign law, she observed, and all nations have recognized their obligation to provide a judicial forum to address disputes involving their citizens. Further, courts from other nations have adjudicated claims of foreign patent infringement–for example, a Japanese court recently adjudicated infringement assertions with respect to a U.S. patent. Distinguishing patents from the application of the local action doctrine, Judge Newman also found no treaty that prohibited one national court from resolving private disputes that involve foreign patent rights. She further appreciated that each of Voda’s patents pertained to the same invention, a mechanical device, that did not raise novel issues based upon a nascent, evolving technological field. Judge Newman finally explained that the concerns that animated the act of state doctrine were simply inapposite to patent cases, which present legal and commercial issues, not ones of sovereign authority.

Voda v. Cordis represents a lost opportunity for the Federal Circuit to ameliorate the burdens of costly, piecemeal patent litigation faced by innovators and the world’s judicial systems alike. The majority’s holding is more narrow than may be initially apparent, however. The majority stressed that jurisdiction under § 1367(c) is an area of discretion, and that different results might obtain “if circumstances change, such as if the United States were to enter into a new international patent treaty or if events during litigation alter a district court’s conclusions regarding comity, judicial economy, convenience, or fairness.” Further, because Voda had not pleaded diversity jurisdiction, the Federal Circuit declined to address this additional possibility for pursuing claims of foreign patent infringement in U.S. courts. For now, innovative industries should recognize that although technology knows no borders, the extent of federal jurisdiction over multinational patent disputes may indeed be constrained by courts uncomfortable with the prospect of adjudicating such cases.

Volokh’s Call Against Judges Who Use International Law

by Peter Spiro

Puzzles About Child Soldiers Bans

by Eugene Kontorovich

The Bush Administration Charges Luis Posada Carriles — Sort Of

by Kevin Jon Heller

The Preclusive Effect of the Lockerbie Criminal Convictions

by Roger Alford

Harvard’s International Law Journal Goes Online

by Peggy McGuinness

Battling for the Spoils of Terrorism Litigation

by Roger Alford

When Does “Annihilation” Equal Genocide? U.S. Congress Again Considers Resolution on Armenian Genocide

by Julian Ku

Introductions

by Eugene Kontorovich

Serbia’s Territorial Integrity and the Limits of UN Power

by Eugene Kontorovich

Morocco to Abolish Death Penalty

by Kevin Jon Heller

Europe Overlay

by Roger Alford

Welcome to Guest Blogger Eugene Kontorovich

by Peggy McGuinness

Chirac Calls for a New World Environmental Organization

by Julian Ku

European Court of Human Rights Judge Alleges Russia Poisoned Him

by Julian Ku

Gapminder: Tracking the Global Development Gap

by Peggy McGuinness

Greenburg: “Bush Will Not Get Another Supreme Court Appointment”

by Roger Alford

Dispatch from Davos

by Roger Alford