Author Archive for
Roger Alford

Linos Book Symposium: Comments by Roger Alford

by Roger Alford

I commend Katerina Linos’ book to our readers and echo the many positive comments that others in this book symposium have shared. Her theory of bottom-up democratic diffusion of norms addresses many of the concerns that have been voiced regarding the democracy deficit that occurs when policy elites borrow from abroad.

I want to push Katerina a bit on the question of actors involved in the diffusion process. She notes that “many academics, judges and commentators emphasize how references to foreign law reflect elite predilections antithetical to the views of ordinary voters, especially ordinary Americans.” (p.26). The context of that criticism, of course, is constitutional comparativism by the Supreme Court in cases such as Roper v Simmons and Lawrence v. Texas.

Almost ten years ago I too expressed concern about the countermajoritarian difficulty of the Court adopting international and foreign norms that run counter to American majoritarian values. As I put it in this article, “the international countermajoriatian difficulty would suggest that international norms cannot be internalized within our Constitution unless such norms are first internalized by our people as our community standards…. To conclude otherwise would grant countermajoritarian international norms constitutional relevance as a community standard.” (p. 59).

Katerina does not address constitutional comparativism per se, but she clearly voices her support for the democratic diffusion of norms. Her book presumes that “international norms and democracy are mutually reinforcing” and that “democratic processes are an engine, not an obstacle, for the spread of policies across countries.” (p.2). The book also presumes political rather than judicial avenues for the diffusion of norms, with elected politicians constrained to borrow from and reference large, rich, and proximate countries and prominent international organizations to advance their own policy preferences.

So my question for Katerina Linos is whether her theory of democratic diffusion supports or undermines arguments for constitutional comparativism. She explains at length how democratic diffusion occurs, but does not clearly indicate her preference for this type of diffusion over alternatives. Does her convincing case for democratic diffusion undermine undemocratic diffusion by policy elites in the judiciary who are unresponsive to and unconstrained by majoritarian preferences?

In short, does her theory posit that policy diffusion is better when it occurs through democratic processes than when it is imposed by judicial elites? To take concrete examples, is it better with controversial questions such as juvenile death penalty (Roper v. Simmons) or gay marriage (United States v. Windsor) for policy preferences to be advanced through democratic diffusion or judicial diffusion?

My own sense is that the Supreme Court experimented with policy diffusion of global norms through constitutional adjudication ten years ago, but has since retreated from that approach, and that democratic diffusion of global norms is the new normal. Indeed, just yesterday in Windsor the Court expressed its sensitivity to the democratic diffusion of norms with respect to gay marriage:

In acting first to recognize and then to allow same-sex marriages, New York was responding ‘to the initiative of those who [sought] a voice in shaping the destiny of their own times’…. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other…. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. (pp. 19-20).

A Review of Andrew Guzman’s Overheated

by Roger Alford

I read my friend Andrew Guzman’s book Overheated: The Human Cost of Climate Change with great interest because I know Guzman is exceedingly capable at communicating complex ideas in an accessible format. He’s done that throughout his career, and Overheated is no exception. Like Hari Osofsky, I commend the book to our readers. Before you teach the law of climate change, give your students the facts by assigning portions of this book.

The science behind climate change is one of those issues that is beyond the comprehension of most intelligent individuals. Therefore, the translation and simplification of what is at stake is essential for public awareness and for the development of policies. The greatest virtue in Andrew Guzman’s book is taking conservative estimates of global warming and then graphically portraying the consequences of such changes. As Guzman puts it,

“[T]his book has tried to explain as clearly and honestly as possible how the effects that scientists have identified will actually affect people. If it is successful, readers will appreciate that the climate-change crisis will affect more than just our physical world. The consequences we really care about are those that affect humans, and … many hundreds of millions of people … will be badly hurt as the earth warms….” (p. 212).

It is difficult to grasp the human costs of climate change. Guzman does so by taking abstract problems–rising ocean levels, melting glaciers, climate wars, pandemics–and humanizing them with concrete stories. He explains how rising ocean levels will result in forced displacement of 20 million people in Bangladesh. He explains how melting glaciers creates water storage problems that will impact millions in Bolivia and California. He explains how climate change will destabilize regions and exacerbate conflicts in places such as Darfur and the Golan Heights. He explains how warmer temperatures will create ideal conditions for a global pandemic, similar to how the Spanish flu of 1918 killed at least twice as many people as World War I. Guzman is at his best in humanizing climate change from an incomprehensible, abstract, and distant problem of Malthusian proportions, to a problem that is concrete, imminent, and understandable.

The second great benefit of the book is the way he responds to the climate change skeptics. Rather than simply dismissing them out of hand, he puts both sides on the scales of reason and makes a convincing case that the skeptics fall short. He does it in a way that is respectful and honest, admitting where the skeptics have valid points but nonetheless fail In the end to prevail in the debate. He does it in a way that you get the sense he genuinely is trying to convince good faith, reasonable people who have their doubts to get off the fence and accept the reality of climate change and the consequences of inaction.

His style of reasoned debate reminds me of the effective campaign that scientists like Albert Einstein, Bertrand Russell, Linus Pauling, Andrei Sakharov and Albert Schweitzer initiated in the 1950s to convince the public of the human costs of nuclear atmospheric testing. Those scientists could have belittled a skeptical public with arguments that spoke over their heads. Instead, they treated the public with respect and made a convincing case that concerns for national security should be balanced with concerns for the human cost of nuclear radiation. The result was a groundswell of national and international public opinion that convinced John F. Kennedy and Nikita Khrushchev at the height of the Cold War to sign a nuclear test ban treaty. In a similar fashion, books like Overheated are essential to aid a skeptical public to understand what is at stake with global warming.

If I were to fault Guzman’s book, it would be for failing to include a more fulsome explanation in the last chapter of the available policy choices. As a trained economist and international lawyer, he is particularly well-placed to discuss carbon taxes, cap and trade, the economics of alternative energy, and the true cost of fossil fuels. Unfortunately, he only devotes ten pages to the “grown-up strategies” for reducing greenhouse gas emissions. Just when the reader is convinced that the climate change problem is real and that something must be done about it, we are left thirsting for an economist and scholar of Guzman’s caliber to explain in some detail why, say, cap and trade is better than a carbon tax. At only 230 pages, there was ample room in the book to add another 20 or 30 pages summarizing the policy options and proposing his own recommendations among the available alternatives. I’d be curious for Guzman to explain why he chose not to include this additional information about the path forward.

So my recommendation is that you read the book, digest the key arguments, and add his stories to your arsenal of facts that you can marshal when you are politely debating your friends and neighbors about the truth and consequences of climate change. My guess is that by simply reading Guzman’s book you will be way ahead of your interlocutors.

Arbitrating Bangladesh Labor Rights (Part II)

by Roger Alford

As Peter noted yesterday, the recent tragedies in Bangladesh factories have resulted in a major breakthrough with the signing of the Accord on Fire and Building Safety in Bangladesh. Thus far, leading retailers such as H&M, Marks & Spencer, Tesco, Sainsbury’s, Benetton, and Calvin Klein are on board. Notably absent from the list are leading U.S. retailers such as Wal-Mart and Gap.

As noted in my previous post, I have been arguing for years that international arbitration could serve as an important procedural tool for promoting human rights in global supply chains. I applaud the commitment of these retailers to join with leading labor rights groups and enter into a binding agreement to improve working conditions in Bangladesh factories.

I do take issue with the drafting of the arbitration agreement, which clearly could have benefited from a quick review by a lawyer with international arbitration experience. Here’s the relevant language:

Any dispute between the parties to, and arising under, the terms of this Agreement shall first be presented to and decided by the SC [seven-member Steering Committee], which shall decide the dispute by majority vote of the SC within a maximum of 21 days of a petition being filed by one of the parties. Upon request of either party, the decision of the SC may be appealed to a final and binding arbitration process. Any arbitration award shall be enforceable in a court of law of the domicile of the signatory against whom enforcement is sought and shall be subject to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention), where applicable. The process for binding arbitration, including, but not limited to, the allocation of costs relating to any arbitration and the process for selection of the Arbitrator, shall be governed by the UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments as adopted in 2006).

Note the peculiarities. There is no governing law clause, no arbitration seat, and no arbitration rules. If a party refuses to arbitrate, there will be no obvious court for the petitioner to file a motion to compel arbitration. Instead the arbitration proceedings are to be governed by the UNCITRAL Model Law on International Commercial Arbitration as a sort of free-floating “anational” governing clause. I suppose that makes the UNCITRAL Model Law the chosen arbitration rules, but I’ve never seen the Model Law function in this fashion. If that’s what the clause does, then any court where an action is brought can compel arbitration and the arbitral panel will be empowered to fill in most of the gaps, including determining the arbitration seat, the governing law, and the scope of its jurisdiction (See Articles 8, 16, 20, 28). Not ideal, but it may do the trick.

Second, the arbitration clause has a peculiar scope. Only disputes “arising under” the Agreement are subject to arbitration, apparently limiting the scope to breach of contract and excluding disputes relating to third-party injuries that relate to the agreement. The scope appears to be further limited by the fact that arbitration is an appellate function only, which may mean that the arbitral tribunal is limited to reviewing legal or factual errors of the Steering Committee.

Third, there is a question as to whether decisions of the Steering Committee are subject to enforcement pursuant to the New York Convention. It appears that only the arbitration awards rendered following an appeal of the Steering Committee decision are subject to such enforcement. This may mean that an appeal is necessary simply to create a binding mechanism for enforcing the parties’ obligations.

My hunch is that despite these errors, if a dispute arises from this agreement the parties will muddle through and find a way to make the dispute resolution clause work. Perhaps in the near term they can clarify these ambiguities when they develop the Implementation Plan mandated by the agreement.

So it’s probably not a pathological arbitration clause, but it could have benefited from a good scrubbing.

Ontario Court Dismisses Ecuadorian Enforcement Action Against Chevron

by Roger Alford

An Ontario court in Yaiguaje v. Chevron has dismissed the Ecuadorian plaintiffs’ efforts to enforce the Ecuadorian judgment against Chevron Canada. Essentially the dismissal rests on the doctrine of the separate legal identities of parent and subsidiary corporations.

Chevron has no assets in Canada, and the subsidiaries’ assets there cannot be attached to enforce a judgment against the parent company. This is not a particularly controversial proposition. Therefore the fight over the recognition and enforcement of the dubious $19 billion Ecuadorian judgment should be resolved elsewhere.

Here’s the key language (paras. 110-111):

By way of summary, Chevron does not possess any assets in this jurisdiction at this time. The evidence also disclosed that no realistic prospect exists that Chevron will bring any assets into this jurisdiction in the foreseeable future…. The plaintiffs’ contention that the assets of Chevron Canada ‘are’ the assets of Chevron has no basis in law or fact…. Accordingly, any recognition of the Ecuadorian Judgment by this Court would have no practical effect whatsoever in light of the absence of exigible assets of the judgment debtor in this jurisdiction.

…. Chevron is on record saying: ‘We will fight until hell freezes over and then fight it out on the ice.’ While Ontario enjoys a bountiful supply of ice for part of each year, Ontario is not the place for that fight. Far from it…. The evidence disclosed that there is nothing in Ontario to fight over…. In my view, the parties should take their fight elsewhere to some jurisdiction where ultimate recognition of the Ecuadorian judgment will have a practical effect.

Chevron’s press release responding to the ruling is here. The Ecuadorian plaintiffs’ press release is here.

Arbitrating Bangladesh Labor Rights

by Roger Alford

BangladeshThis week 170 garment workers in Bangladesh died after the Rana Plaza building collapsed. A few months ago 112 garment workers in Bangladesh died after the Tazreen Fashions garment factory was destroyed by fire. Both tragedies were the result of inadequate fire and safety standards.

These tragedies could not have come at a worst time for major retailers that purchase garments from these factories. For months the International Labor Rights Forum and other labor rights groups have encouraged garment retailers to sign a binding agreement that would create a system of rigorous inspections, transparency and oversight. Thus far, they have had limited success, with only the parent company of Tommy Hilfiger and Calvin Klein brands and one German retailer signing on.

The agreement, the Bangladesh Fire and Building Safety Agreement, would establish a nine-member Oversight Committee, with four members appointed by Bangladesh and international labor groups, four members appointed by business representatives chosen by companies sourcing from Bangladesh, and one member mutually chosen by the other eight. Corporations that sign on to the MOU would help fund the costs of improving fire and safety standards in the factories where they source their supplies. As reported by the New York Times here,

The companies would bear the costs of improvements through higher prices for clothes and grants to workers who miss workdays because of renovations. The cost of the inspection program to each company would vary by the firm’s size, but it would be capped at $500,000 a year…. Labor groups say a roughly 3 percent annual increase in prices paid to the factories would be sufficient to make the needed improvements.

A key provision in the Agreement is binding arbitration. Specifically, the Agreement requires the Oversight Committee to develop a plan for the implementation and administration of the Bangladesh fire and safety program that includes “[a] process for binding and legally enforceable arbitration of disputes between parties to this MOU with respect to this MOU and the program….”

In other words, labor unions and participating corporations would sign a binding agreement to improve the working conditions of Bangladeshi garment workers, and any corporation that failed to comply with its funding or other obligations under the MOU could be the subject to international arbitration enforceable under the New York Convention in that corporation’s home country.

I have long advocated the use of international arbitration to address human rights concerns such as core labor rights. As I argued in “Arbitrating Human Rights“:

“[O]ne can anticipate that many corporations will increasingly include core human rights and environmental standards as contractual covenants in their international agreements. These contracts will also include grievance procedures, including arbitration, as a com­mon mechanism for dispute resolution. Serious noncompliance with substantive contractual obligations will trigger invocation of the dispute resolution provisions. Thus, by contracting for human rights as a substantive obligation and contracting for arbitration as a procedural guarantee, corporations throughout the globe can establish a firm basis for the promotion of human rights within their spheres of influence.”

In order to incentivize corporations that source their garments from Bangladesh, large wholesale and institutional buyers and IP holders, such as colleges and universities who purchase garments or license trademarks, can require these corporations to sign reasonable labor agreements such as the Bangladesh Fire and Building Safety Agreement as a condition in their agreements. In other words, upstream contracts can require downstream supply chain labor rights.

Tragic events like the death of 170 and 112 garment workers—a death toll that is over ninety times greater than that of the Boston marathon bombings—should be sufficient incentive to sign MOUs like that proposed in Bangladesh to improve the working conditions of garment workers who earn just over $1 a day.

Supreme Court Agrees to Hear Another Human Rights Case

by Roger Alford

This time it is about general personal jurisdiction of a foreign parent corporation based on alleged human rights violations of one subsidiary in a foreign country and unrelated activities of another subsidiary within the forum. The question presented in Daimler Chrysler AG v. Bauman is as follows:

Daimler AG is a German public stock company that does not manufacture or sell products, own property, or employ workers in the United States. The Ninth Circuit nevertheless held that Daimler AG is subject to general personal jurisdiction in California—and can therefore be sued in the State for alleged human-rights violations committed in Argentina by an Argentine subsidiary against Argentine residents— because it has a different, indirect subsidiary that distributes Daimler AG-manufactured vehicles in California. It is undisputed that Daimler AG and its U.S. subsidiary adhere to all the legal requirements
necessary to maintain their separate corporate identities. The question presented is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.

Scotusblog and ConflictofLaws.net have commentary.

Kiobel Insta-Symposium: Degrees of Territoriality

by Roger Alford

“[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”

That is the operative language in Kiobel. Which raises the question, if mere corporate presence is not enough, what kind and how much territorial activity within the United States is enough? After Kiobel, that will be a critical question for future ATS litigation. Without expressing an opinion on how much is enough, I thought it worth considering the types of activities that might be the subject of future litigation. Here’s a non-exhaustive list:

Execution. In some ATS cases it is alleged that individuals commit international law violations within the United States. Examples include allegations of unlawful conduct within U.S. prisons, immigration deportation centers, or military bases, or conduct within the United States such as sex trafficking or slavery.

Cross-border Conduct. In some ATS cases it is alleged that individuals commit international law violations based on conduct that occurs partly within the United States and partly outside the United States. Examples include cross-border kidnapping, airline hijacking, or piracy within and outside territorial waters.

Planning and Authorization. In some ATS cases it is alleged that individuals located within the United States either plan or authorize an international violation occurring abroad. If the judgment call to conduct an international violation occurred within the United States, is that enough? Examples include the decision to conduct medical experiments without patient consent or the approval within the United States to engage in extraterritorial torture or killings.

Design and Testing. In some ATS cases it is alleged that products known to harm individuals are designed and tested in the United States, but the manufacture and exposure to the product occurs abroad. Examples include the design and testing in the United States of pesticides or medicines known to cause death or blindness, with the manufacture and human exposure of those products occurring abroad.

Training. In some ATS cases it is alleged that individuals are trained within the United States to engage in conduct that would constitute an international law violation. Examples include training to commit acts of torture within the United States, and then committing those acts of torture abroad.

Construction. In some ATS cases it is alleged that products are manufactured within the United States and those products are then used abroad to commit international law violations. Examples include the manufacture of weapons, armor-plated bulldozers, pesticides, etc.

Contracting. In some ATS cases it is alleged that contracts for employment were signed within the United States, and the individuals committed acts abroad pursuant to those contracts that constitute an international law violation. Examples include contracts signed within the United States for nongovernmental security forces, but the performance of those contracts occurring abroad. Another territorial nexus might be a contract executed and performed abroad that has a territorial nexus based on the choice of law clause, such as a New York governing law clause.

Financing and Money Transfers. In some ATS cases it is alleged that the unlawful behavior and injuries occurred abroad but the financing for such conduct was done within the United States or the money used to commit such crimes was transferred through U.S. banks. Examples are too numerous to mention, but include the financing of terrorism or other unlawful conduct.

Electronic Communications. In some ATS cases it is alleged that unlawful conduct and resulting injuries occurred abroad, but the electronic communications with respect to such conduct occurred within the United States. With the root servers located in the United States, any Internet-based electronic communication might satisfy this territorial nexus. Communications conducted through email accounts based within the United States, such as Gmail and Yahoo, might also satisfy this territorial requirement.

Unlawful Gains. In some ATS cases it is alleged that the unlawful conduct and injuries occur abroad, but the benefits that accrue from such unlawful behavior are experienced at home. Examples include profits derived from corporate aiding and abetting government abuse, corporate profits from unlawful labor practices occurring abroad, or extraterritorial sex trafficking or criminal activity with the ill-gotten proceeds accruing at home.

Injury. In some ATS cases it is alleged that the unlawful conduct occurs abroad, but the resulting injuries occur within the United States. Examples include the expropriation of property located abroad owned by individuals located within the United States, poisoning or medical testing abroad with resulting injuries occurring within the United States, or torture or extrajudicial killing of individuals abroad that causes secondary injuries (intentional infliction of emotion distress) to loved ones within the United States.

“Extraterritorial Territory.” In some ATS cases, it is alleged that the unlawful conduct occurs abroad, but there is nonetheless a territorial nexus to the United States. Examples include conduct that occurs on U.S. territories, within U.S. embassies and consulates, on U.S. military bases located overseas, or on U.S.-flagged vessels or airlines.

Obviously, not all of these activities will touch and concern the United States with sufficient force to displace the presumption against extraterritoriality. But these are the kinds of questions that will be the subject of future litigation.

Kiobel Insta-Symposium: Interpreting “Touch and Concern”

by Roger Alford

A few posts yesterday suggest that the reports of the death of the ATS have been greatly exaggerated. Oona Hathaway argues that “[t]hose celebrating the demise of the ATS may thus find themselves surprised to discover that the end result of the Supreme Court’s decision yesterday may not be the end of the ATS after all, but instead a renewed focus of ATS litigation on U.S. corporations.” Marty Lederman argues that “the language and history of the ATS provide no basis for wholly rebutting the presumption against extraterritoriality; but that there also remain unresolved sets of “significant” cases in which the conduct alleged might be sufficient to “displace[]” the presumption…. [T]he cases most amenable to such displacement would be those in which a U.S. person or corporation is responsible for the violation.”

In both cases they seize on the “touch and concern” language in Section IV of the majority opinion in Kiobel, which states as follows:

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

They seem to suggest that “touch and concern” is not about U.S. conduct, but rather U.S. interests. I respectfully disagree.

One cannot interpret that phrase without looking to pages 17-24 of the Morrison slip opinion. That section of Morrison clearly addresses the question of conduct that partly occurs abroad and partly occurs at home.

Here’s a few choice excerpts from the relevant section of Morrison:

[I]t is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States. But the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case…

“[W]e think that the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States…. Those purchase-and-sale transactions are the objects of the statute’s solicitude. It is those transactions that the statute seeks to “regulate”; it is parties or prospective parties to those transactions that the statute seeks to “protec[t]….”

The Solicitor General suggests a different test, which petitioners also endorse: “[A] transnational securities fraud violates [§]10(b) when the fraud involves significant conduct in the United States that is material to the fraud’s success.” Neither the Solicitor General nor petitioners provide any textual support for this test. The Solicitor General sets forth a number of purposes such a test would serve … [b]ut it provides no textual support for the last of these purposes, or for the first two as applied to the foreign securities industry and securities markets abroad. It is our function to give the statute the effect its language suggests, however modest that may be; not to extend it to admirable purposes it might be used to achieve….

The Solicitor General points out that the “significant and material conduct” test is in accord with prevailing notions of international comity. If so, that proves that if the United States asserted prescriptive jurisdiction pursuant to the “significant and material conduct” test it would not violate customary international law; but it in no way tends to prove that that is what Congress has done….

Section 10(b) reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States. This case involves no securities listed on a domestic exchange, and all aspects of the purchases complained of by those petitioners who still have live claims occurred outside the United States.

In light of Morrison, how should one interpret the Court in Kiobel when it says that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24).” I think the answer can only be that it is a reference to conduct that occurs at least partly within the United States. I say that because the referenced language in Morrison addresses situations in which the presumption applies, but to avoid it being a “craven watchdog” must be reconciled with some U.S. activity. Section IV in Kiobel concerns situations in which there is both territorial and extraterritorial conduct. It is not a backdoor attempt to embrace Justice Breyer’s concurring opinion, or an attempt to convert domestic conduct into domestic interests.

The “significant questions” that remain unanswered by Kiobel are how much and what kind of domestic activity is sufficient to rebut the presumption against extraterritoriality. Consistent with Morrison, those questions must be answered in light of the text, history, and purpose of the statute as interpreted by the Court in Section III of Kiobel.

Kiobel Insta-Symposium: The Death of the ATS and the Rise of Transnational Tort Litigation

by Roger Alford

The ATS as we know it is dead. I predicted as much in October, but I was uncertain whether the Supreme Court would deliver a mortal blow and by what means it would deliver it. Now we know. The presumption against extraterritoriality, combined with a narrow interpretation of territoriality, means that the Filartiga human rights revolution is essentially over. Other posts this week will discuss whether the ATS has a future after Kiobel, but that is simply a search for a silver lining in what is, for plaintiffs, otherwise a dark and ominous thunderstorm that has destroyed an entire cottage industry.

What now? Obviously there is the Torture Victim Protection Act (TVPA), which may be sufficient for some causes of action. But per Mohamed v. Palestinian Authority, such causes of action are only available against natural persons. No corporate claims may be brought under the TVPA, and claims against corporate officers will struggle to overcome the Iqbal/Twombly pleading standards.

Others will argue that the ATS survives as long as there is some territorial nexus. This may mean that the old American Banana and Sisal Sales standard applied in the antitrust context is now applicable to human rights litigation. The search is on for some constituent act that occurred within the forum to satisfy the territorial nexus. But if territoriality is the new standard, why rely on international law instead of a panoply of more favorable domestic laws that capture the same conduct? And if Alito’s standard for territoriality is required, then the constituent territorial act must violate an international law norm. Good luck finding that conduct.

More promising than these options is transnational tort litigation. As I discuss in a forthcoming article (now more relevant than ever) and as Trey Childress discusses here and a recent Irvine Law Review symposium features here, the future of human rights in domestic courts is transnational tort litigation. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. In the quest to provide relief for victims of grave abuse, international human rights violations will now be reframed as transnational torts. Virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort. Indeed, many complaints routinely add pendent state tort claims. In the Kiobel oral argument, both Kathleen Sullivan and Paul Hoffman concede the availability of state tort claims in lieu of ATS litigation.

What does this mean in practice? Now more than ever, human rights lawyers must become experts on choice of law and comparative tort law. It is a trend that already has been applied for over a decade in the terrorism context, but no one has been paying attention. Pursuant to the FSIA’s Flatow amendment, victims of international terrorism have secured billions (yes billions) of dollars in judgments against state sponsors of terrorism. They typically have done so by invoking choice of law principles to apply domestic tort laws to redress foreign terrorist attacks. In most cases the state tort law of the decedents’ domiciliary has controlled. Thus, when a suicide bomber kills Americans in Israel, or Lebanon, or Nigeria, it is Illinois, Louisiana, or Nebraska law that is applied to hold the perpetrators accountable.

Going forward, human rights lawyers must consider whether choice-of-law standards of the several states will authorize recourse to state or foreign tort laws. That means forum shopping with an eye toward choice of law. Is it better to sue in a “most significant relationship” jurisdiction (e.g., Texas, Florida), a “government interest” jurisdiction (e.g., District of Columbia, California), a lex fori jurisdiction (e.g., Michigan, Kentucky), a lex loci delicti jurisdiction (e.g., Virginia, Maryland), a “better law” jurisdiction (e.g., Minnesota, New Hampshire), or a jurisdiction that adopts an eclectic approach (e.g., New York, Pennsylvania). Who knows, for it will depend on the facts of each case. In some cases (i.e., terrorist attacks in Israel), foreign tort laws may be preferable to state tort laws. In other cases (i.e., torture and killings in Burma), domestic tort laws will be far preferable to foreign laws. If I were a law student who aspired to become a human rights lawyer, after today I would be enrolling in courses that teach conflict of laws and comparative torts.

What does a choice-of-law analysis for human rights abuses typically mean? More often than not, it means the application of foreign tort laws. That is to say, if one analyzes the major choice-of-law approaches and applies them to the facts of prominent human rights cases, courts will typically apply foreign tort laws to resolve claims alleging foreign conduct that causes foreign injuries. Under the specific facts of Kiobel, for example, a state court would apply Nigerian, English, or Dutch law under every choice-of-law approach.

Lest one think that transnational tort litigation is a poor second to ATS litigation, it is fairly clear that this option has numerous advantages over the alternatives. First, tort laws are almost universal. According to the International Commission of Jurists, “[i]n every jurisdiction, despite differences in terminology and approach, an actor may be held liable under the law of civil remedies if through negligent or intentional conduct it causes harm to someone else.” Assuming a fair and impartial adjudicator, remedies for harm to life and liberty are part of public and private laws throughout the civilized world. To the extent a foreign country does not have effective tort laws, then a choice of law public policy exception may result in the application of domestic tort laws.

Second, transnational torts have much lower thresholds than the standards applied under international law, allowing claims to be brought for intentional torts, simple negligence, strict products liability, or any other harmful or offensive conduct that constitutes a legal wrong. Human rights litigation is about grave public wrongs; transnational tort litigation is about redressing simple private wrongs. If the choice is between proving simple negligence instead of a paradigmatic international law violation with a territorial nexus, which would you prefer? For most plaintiffs, it’s not a hard choice.

Third, corporate accessorial liability for aiding and abetting human rights abuse is largely irrelevant when pursuing claims for transnational torts (a question left unresolved in Kiobel with respect to international law). Establishing that a corporate defendant aided and abetted government abuse with the requisite intent is likewise irrelevant. What matters is whether the defendant knew or should have known that its conduct would cause harm. If so, under most jurisdictions of the world a corporation is liable.

Fourth, pleading a violation of transnational torts in most state courts may avoid heightened federal pleading standards. The notice pleading standard applied in the majority of state courts is that a complaint should not be dismissed for failure to state a claim unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Pursuing state law tort claims in state courts is more likely to overcome a motion to dismiss than if the same claim were filed in federal court. Thus, plaintiffs struggling with the heightened federal pleading standard of Iqbal and Twombly may wish to pursue state tort law claims in state court, and file in the defendant’s home state to avoid removal to federal court on diversity grounds.

Fifth, forum non conveniens does not have the same force or favor in state courts as in federal courts. Moreover, after the $18 billion Chevron debacle in Ecuador and Chevron’s huge victory in Bowoto, it is unclear whether corporations will remain as enthusiastic about foreign court litigation or as skittish about domestic court litigation as they have in the past. Many defendants may surmise that it is better to fight in state court rather than gamble with the vagaries and corruption common in many foreign courts.

Sixth, under almost every choice-of-law approach, concerns for international comity and foreign sovereign interests are built into the analysis. For example, under the approach adopted by most states, the needs of the international system and the policies of other interested states are part and parcel of the choice-of-law determination. The sovereignty concerns expressed in Kiobel are built into the system, and often result in the application of foreign laws.

Seventh, state tort laws may apply extraterritorially. As noted, typically this is done on a case-by-case basis after the full implications for such application are taken into account. Thus, virtually every terrorism case pursuant to the Flatow amendment did just that, with the paramount government interest in combatting terrorism trumping foreign interests. Think back to the major foreign terrorism events of recent decades: Khobar Towers, Beirut barracks, USS Cole, Jerusalem bus bombings, African embassy bombings. All resulted in the application of domestic wrongful death tort laws based on the domicile of the decedent victim.

There’s more I could say, but you get the idea. Transnational tort litigation cannot replace the old version of ATS litigation. But after Kiobel, human rights lawyers have precious few alternatives. If there is a silver lining to Kiobel, it is that human rights lawyers will wake up to what transnational tort litigation has to offer.

Kiobel Insta-Symposium

by Roger Alford

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the Supreme Court’s decision in Kiobel. We also are going to try something new and invite young academics to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new voices. So if you want to write a guest post for Opinio Juris about Kiobel of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish as many as we deem appropriate.

Cybersecurity at the WTO

by Roger Alford

Stewart Baker over at Volokh has a couple of interesting posts here and here on the new cybersecurity legislation that bars federal government purchases of IT equipment “produced, manufactured or assembled” by entities “owned, directed, or subsidized by the People’s Republic of China” unless the head of the purchasing agency consults with the FBI and determines that the purchase is “in the national interest of the United States. Here’s the key language:

Sec. 516. (a) None of the funds appropriated or otherwise made available under this Act may be used by the Departments of Commerce and Justice, the National Aeronautics and Space Administration, or the National Science Foundation to acquire an information technology system unless the head of the entity involved, in consultation with the Federal Bureau of Investigation or other appropriate Federal entity, has made an assessment of any associated risk of cyber-espionage or sabotage associated with the acquisition of such system, including any risk associated with such system being produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China.

(b) None of the funds appropriated or otherwise made available under this Act may be used to acquire an information technology system described in an assessment required by subsection (a) and produced, manufactured or assembled by one or more entities that are owned, directed or subsidized by the People’s Republic of China unless the head of the assessing entity described in subsection (a) determines, and reports that determination to the Committees on Appropriations of the House of Representatives and the Senate, that the acquisition of such system is in the national interest of the United States.

Baker raises the issue of whether such legislation would fall under the security exception in the WTO procurement agreement. Baker expressed concern that “the US Trade Representative’s office had negotiated a strikingly weak security exemption for the WTO procurement code…. The US can make a good case that attacks on the Commerce Department or the Justice Department information systems threaten national security, but it’s hard to argue that the IT systems those departments buy are themselves indispensable for national security.” But he ignores the critical point of the security exception, which is that the provision is self-judging. It doesn’t matter if, objectively speaking, the IT systems are indispensable for security. What matters is whether the United States considers such restrictions to be necessary for its essential security interests.

I have written extensively about the WTO security exception, and the bottom line is that despite numerous security crises that have come before the GATT/WTO–the Marshall Plan, the Falkland War, the Reagan Doctrine, the War in Yugoslavia, the secondary boycott against Cuba, the Arab League Boycott against Israel–there has never been a case actually adjudicating the security exception. The reason is that Member States’s recognize that national security questions are self-judging. Each Member State decides for itself whether action is necessary for its essential security interests.

Article XXI of GATT 1947 and Article XXIII of the Government Procurement Agreement both have such language. Baker focuses on the language in Article XXIII requiring that the procurement be “indispensable for national security or for national defence purposes.” But the operative language is that “[n]othing in this Agreement shall be construed to prevent any Party from taking any action … which it considers necessary for the protection of its essential security interests relating to … procurement indispensable for national security or for national defence purposes.” Unlike the general exceptions, the security exceptions in GATT 1947 and the Procurement Agreement are self-judging, analogous to the political question doctrine in U.S. constitutional law. If the United States makes a determination that Section 516 is necessary for its essential security interests, at least with respect to WTO compliance, that is the end of the matter.

Of course, it may seem counterintuitive that a self-judging exception could be embedded into the WTO agreements, a subject that I discuss in some detail in the article. Wouldn’t such a self-judging exception swallow the rule? For a variety of reasons, the answer is a resounding no. International trade law, viewed by many as the most intrusive branch of international law, has preserved one enclave of complete national sovereignty without undermining the efficacy of the WTO.

Google Rankings of the Most-Cited International Law Journals

by Roger Alford

For those of you who are trying to decide where to publish your article during this submission cycle, my friend and former colleague Rob Anderson has identified an interesting Google metric for measuring the most-cited international law journals. As he notes:

“The rankings are based on Jorge Hirsch’s “h-index,” which is an alternative to impact factor as a measure of a journal’s importance. The new Google rankings will be yet another entrant for ranking law reviews alongside Washington and Lee’s rankings.”

Here’s the Google Scholar h-index ranking of international law journals:

1. American Journal of International Law
2. Human Rights Quarterly
3. European Journal of International Law
4. American Journal of Comparative Law
5. Virginia Journal of International Law
6. European Law Journal
7. Chicago Journal of International Law
8. Journal of International Economic Law
9. Global Governance: A Review of Multilateralism and International Organizations
10. Common market law review
11. Journal of International Criminal Justice
12. International Journal of Constitutional Law
13. Fordham International Law Journal
14. International Journal of Transitional Justice
15. German Law Journal
16. Vanderbilt Journal of Transnational Law
17. Human Rights Law Review
18. Cornell International Law Journal
19. Michigan Journal of International Law
20. New York University Journal of International Law & Policy

You can also see how international law journals rank relative to other journals here.

It is worth emphasizing that not every international journal is in the Google Scholar database, so one should take these rankings with a grain of salt. For example, neither the Harvard International Law Journal nor the Yale Journal of International Law is in the Google Scholar database. But at least for those journals that are in the database, it gives one a good sense of the relative influence of each journal.

If you are trying to compare the rankings of each journal where your article has been accepted, you can type the name of the journal into the Google Scholar search engine to get the h-index for that journal. The higher the h-index score, the more cited the journal.