Author Archive for
Roger Alford

A Broken Windows Theory of International Corruption

by Roger Alford

I have just posted on SSRN my latest article published in the Ohio State Law Journal. Through the lens of the broken windows theory of community policing, the Article examines the connection between corruption and other social goods in society, as well as the relationship between U.S. enforcement efforts and those of other OECD countries.

It is incredible how much empirical research has been done on international corruption in other disciplines, and yet the legal community largely ignores this data. It’s also incredible how rare it is for social science empiricists to make policy arguments that flow from their research. The Article tries to bring these two worlds together by digesting the mountain of empirical evidence regarding international corruption, and then making specific policy recommendations. Here’s the abstract:

The Article re-conceptualizes corruption through the lens of the broken windows theory of community policing, focusing on the root consequences of corruption as well as its secondary effects.

Part II of the Article posits that corruption is a broken window that signals the breakdown of community controls necessary for the maintenance of social order. A government that abuses its power for private gain is a government that cannot be trusted to pursue the general welfare. Empirical evidence finds ample support for this claim, confirming that corruption negatively alters the public’s perception of government and society.

Part III of the Article illuminates how corruption is associated with other matters of grave public concern, such that the struggle against corruption is the struggle to promote a variety of public benefits. Corruption is inextricably linked to many other public concerns. Empirical evidence finds a positive relationship between a country’s corruption ranking and its ranking on other major indices measuring public welfare. Communities that are perceived to take corruption seriously score well on their commitment to other social goods, such as global competitiveness and productivity, increased standards of living, enhanced children’s health, protection of civil liberties, and the safeguarding of political freedom. These corruption correlations provide an evocative snapshot of the connection between corruption and social order.

Part IV of the Article analyzes the legal efforts to combat corruption, with particular focus on the utility of cooperative efforts to regulate and prosecute corruption. Empirical studies show that coordination strategies between OECD enforcement authorities alter the behavior of corporations, foreign officials requesting bribes, and government officials prosecuting the payment of bribes.

Part V of the Article discusses how these findings have important implications when considered from the perspective of a “broken windows” theory of international corruption. How would a broken windows theory of corruption alter the legal landscape of anti-bribery laws? I offer three suggestions. First, a broken windows approach would redefine and reframe corruption as distrust and disorder. Conceptualizing corruption as a matter of public trust heightens its importance. Public trust is essential to the rule of law. Second, a broken windows approach would augment the battle against corruption with a greater emphasis on petty bribery. Thus far the legal enforcement strategies have focused on high-profile, large-scale corruption. A broken windows strategy would not ignore those cases, but would also focus on low-profile, petty corruption that alters quality of life and undermines public trust. Third, a broken windows theory would place greater emphasis on a partnership between the public and private sectors to combat corruption. This approach would mean that corruption should be considered in the local context, with a focus on its destabilizing effects in specific countries and communities.

Why is Academic Writing So Bad?

by Roger Alford

Scholarship

There is an interesting discussion by Stephen Walt over at Foreign Policy on why academic writing is so bad. It is a subject academics are reluctant to discuss, yet there is no doubt that much of what passes as legal scholarship is dull, disagreeable, undigestable. Here’s Walt’s take:

The first problem is that many academics (and especially younger ones) tend to confuse incomprehensibility with profundity. If they write long and ponderous sentences and throw in lots of jargon, they assume that readers will be dazzled by their erudition and more likely to accept whatever it is they are saying uncritically. Moreover, jargon is a way for professional academics to remind ordinary people that they are part of a guild with specialized knowledge that outsiders lack, and younger scholars often fear that if they don’t sound like a professional scholar, then readers won’t believe what they are saying no matter how solid their arguments and evidence are.

The second problem is the fear of being wrong. If your prose is clear and your arguments are easy to follow, then readers can figure out what you are saying and they can hold you to account. If you are making forecasts (or if the theory you are advancing has implications for the future), then you will look bad if your predictions are clearly stated and then fail. If your argument has obvious testable implications, others can run the tests and see how well your claims stand up.

But if your prose is muddy and obscure or your arguments are hedged in every conceivable direction, then readers may not be able to figure out what you’re really saying and you can always dodge criticism by claiming to have been misunderstood. (Of course, sometimes critics do deliberately misrepresent a scholarly argument, but that’s another matter). Bad writing thus becomes a form of academic camouflage designed to shield the author from criticism.

My own sense is that legal scholarship is better than most academic writing because we are trained at law school and in law firms to be convincing and comprehensible. Once in the academy, we are further trained to reach two audiences: our academic peers and our student gatekeepers who hold the keys to the kingdom. Obscurity may be appropriate for one audience, but not the other. Our law student underlords save us from the trap of most other academics.

So why does legal scholarship still miss the mark?

First, legal scholarship is formulaic. There is an order and predictability to legal writing that stifles creativity. You know the recipe: (1) Introduction with obligatory road map; (2) Background section for the neophyte; (3) Excruciating description of the problem; (4) Unrealistic normative solution; (5) Standard conclusion. This formula rules the day. Add ingredients, mix hastily, half-bake to 25,000 words, and then publish.

Second, legal scholarship is prosaic. Many legal scholars are more interested in arguments than words. We love the research, but not the writing. We are “ideasmiths” rather than wordsmiths. I recently read a draft article on financial regulation that had profoundly good ideas expressed in profoundly bad ways. At some point in the writing process, an entire draft should be devoted to simple wordsmithing. Every word, sentence, and paragraph should matter. When the manuscript is nearing completion we should be spending days wordsmithing, polishing rough edges, adding color and texture, altering the draft so that it is elegant and interesting.

Third, legal scholarship has a footnote fetish. Years of experience responding to law review editors has made original thought suspect. Today articles often have 500, even 600 footnotes. Student editors routinely demand supporting citations for original thought to the point of farce. The fruit of creativity struggles to survive with such aggressive pruning.

Fourth, legal scholarship is technical. Let’s face it, many of the subjects we write about are arid and lifeless. The devil is in the details, and those details are devilishly difficult to disseminate. It is not easy to make Rule 26(b) sound snappy. Maritime delimitation is not exactly the pearl of great worth. Okay, maybe it is, but writing about it is not. The trick is to make a technical subject sound as interesting as possible. Great legal writing often is about taking dry and tedious ingredients and transforming them into agreeable fare. It will not keep your teenager from rolling her eyes when you explain what you did at work today, but it should keep your colleagues and students from giving up in frustration.

Cruel Window No More

by Roger Alford

With the publication by the Journal of Legal Education’s recent “Fiction Issue,” and the London Review of International Law announcing that they will include poetry with the goal of expanding and enriching the international legal conversation, I thought this poem was particularly timely. It is written by an anonymous friend for those who have suffered from human trafficking and for those who advocate on their behalf.

Cruel Window No More

Colored panes of glass, once collected,
Good and evil, gently refracted.

Purveyor of harm enters in,
muffled alarm, tragic din.

The deed is done, young soul plucked,
Life shattered, filthy muck.

Stained glass, broken body,
Nature’s law suspended.

Shards of life, colors bleed,
Love’s dance upended.

Corrupted inquisitor, shadow valley,
Rotten misery.

Timely advocate, verdant pasture,
Quenching remedy.

Shutters open, warm air,
Cleansing counsel, gentle care.

Broken glass reframed,
Child reborn, strengthened claim.

Colored pane restored,
Cruel window no more.

The Role of Intellectuals in Society

by Roger Alford

In doing research on Aung San Suu Kyi, I recently came across this wonderful discussion from 2005 on the role of the intellectual in society. It comes in the form of a dialogue with Alan Clements in his book, The Voice of Hope: Aung San Suu Kyi: Conversations with Alan Clements.

Clements: I brought with me a quote from Václav Havel in which he explains the role of the intellectual within society. When I first read it, I instantly thought of you. He writes, “The intellectual should constantly disturb, should bear witness to the misery of the world, should be provocative by being independent, should rebel against all hidden and open pressures and manipulations, should be the chief doubter of systems … and for this reason, an intellectual cannot fit into any role that might be assigned to him … and essentially doesn’t belong anywhere: he stands out as an irritant wherever he is.”

Suu Kyi: I would agree with everything that Václav Havel says. I would say that basically, in order to become an intellectual you’ve got to have a questioning mind…. Intellectuals are very important in any society. Because they are the ones who, like in the quotation, are provoking people, opening them to new ideas, pushing them along to new heights. This is one of the tragedies of Burma–the intellectual is not allowed any place within the society. And the real intellectual, of the kind described by Václav Havel, would not be allowed to survive in Burma.

Clements: Why?

Suu Kyi: He would either have to repress his instincts as an intellectual, or he would have to leave Burma, or he would have to go and sit in prison. He’s got to choose between those three.

Clements: So by function, a totalitarian regime attempts to create a mindless, featureless society by crushing the intellectual?

Suu Kyi: The intellectual with his questioning mind threatens the totalitarian mind which expects orders to be carried out and decrees to be accepted without question. There will always be clashes between the authoritarian mind and the questioning mind. They just cannot go together.

I think it is easy in a free society to forget how important an intellectual is to the welfare of a country. The right to question and doubt is taken for granted. Freedom of thought and expression are a given. Skepticism of the system is encouraged. Intellectuals are often discouraged because they too are taken for granted. “I’m just an intellectual,” we sometimes think.

As you go about your work today give thanks that you are an intellectual in a free society. As you watch the Commander-in-Chief tonight propose his agenda for his Second Term, marvel not with what he says, but that he is accountable for every word and deed to the intellectuals–the Doubters-in-Chief.

The same cannot be said of much of the world. Over one-half of the world’s population live in closed societies. Burma, of course, is rising. It no longer is among the worst of the worst. That dishonor goes to the forlorn citizens of these fifteen Asian and African authoritarian regimes: Belarus, Chad, China, Cuba, Eritrea, Equatorial Guinea, Laos, North Korea, Saudi Arabia, Somalia, South Ossetia, Sudan, Syria, Turkmenistan, and Uzbekistan.

In a free society intellectuals are encouraged to speak their minds with reason and integrity. Our colleagues living under authoritarian regimes must speak with equal measures of insight and courage.

Ancillary Discovery in Aid of Foreign or International Proceedings

by Roger Alford

I have posted on SSRN my latest article, “Ancillary Discovery to Prove Denial of Justice” just published in the Virginia Journal of International Law. It analyzes Section 1782 discovery proceedings in the context of BIT arbitration and argues that there is now uniform agreement among federal courts that investment arbitration panels are “international tribunals” within the meaning of Section 1782.

But the article has salience outside that context, and could be applied to many foreign or international proceedings. One plaintiff involved in a French proceeding, for example, served a discovery subpoena on a French party while he was visiting a museum on vacation in the United States, thereby incorporating American discovery into the French proceeding. A German defendant in a German proceeding issued a Section 1782 discovery subpoena on the American plaintiff, and thereby incorporated non-reciprocal American-style discovery into the German proceeding.

The article presents several conclusions regarding the growing use of ancillary discovery in international adjudication, particularly in the context of investment arbitration claims against respondent states.

First, ancillary discovery under Section 1782 reflects a congressional intent to allow interested parties to avail themselves of liberal discovery under the Federal Rules of Civil Procedure, resulting in the indirect incorporation of American-style discovery into foreign or international proceedings. If this trend continues, American discovery will become an important ancillary mechanism to gather evidence, in addition to and perhaps in lieu of the traditional evidence gathering procedures utilized by foreign or international tribunals. For example, I outline in the article how all the important fraud information Chevron received against Ecuador came from Section 1782 proceedings, not evidence gathering pursuant to foreign or international proceedings.

Second, liberal discovery pursuant to Section 1782 promotes evidentiary forum shopping, encouraging parties to pursue ancillary discovery in the United States rather than rely on the discovery procedures available in foreign or international proceedings. If parties can rely on the liberal discovery standard of FRCP Rule 26, requiring only that the requested information is “reasonably calculated to lead to the discovery of admissible evidence,” then why opt for narrow discovery approaches of foreign or international tribunals?

Third, the use of Section 1782 in aid of international tribunals reflects sensitivity to the comity of courts, not the comity of nations, such that federal courts determining whether to order ancillary discovery should consider the international tribunal’s receptivity to such assistance, but not the attitude of the foreign sovereign responding to allegations of international law violations. International tribunals thus far have been extremely passive in their role in this regard, whereas respondent state’s have protested vigorously, but to no avail.

Fourth, in the specific context of investment arbitration, providing foreign investors with a remedy for denial of justice, together with a robust means to prove such a violation, alters the host State’s incentives and requires it to play a two-level game that reconciles international obligations with domestic political preferences. Robust evidence gathering at the international level increases the likelihood that respondent states will be liable for international law violations.

Finally, the article outlines the possible abuse of ancillary discovery under Section 1782. Chevron’s recent subpoena of Kevin Jon Heller’s email logs is an example. Email providers such as Google, Yahoo, and Microsoft are becoming obvious targets for discovery by parties seeking access to email account information of individuals involved in domestic, foreign, or international proceedings. Section 1782 is particularly vulnerable to abuse where one party is situated (or transiently found) in the United States, while all the relevant information of the other party is located abroad.

“I Have Big Heels to Fill”

by Roger Alford

Secretary of State John Kerry made a few opening remarks (video here) yesterday at the State Department that are worth quoting.

“So here’s the big question before the country and the world and the State Department after the last eight years: Can a man actually run the State Department? (Laughter) I don’t know. (Applause) As the saying goes, I have big heels to fill. (Laughter)”

He then presents a poignant historical account of his childhood memories as a diplomat’s son in Berlin:

“I was back in Boston two weeks ago and I was rummaging through some old stuff and I found the first evidence of my connection to this great diplomatic enterprise – my first diplomatic passport. (Applause.) There it is. Number 2927 – there weren’t a lot of people then. (Laughter.) And if you open it up, there’s a picture of a little 11-year-old John Kerry and no, you will not get to see it. (Laughter.) And then in the description it says, “Height: 4-foot-3.” (Laughter.) “Hair: Brown.” So as you can see, the only thing that’s changed is the height. (Laughter.)

And the first stamp in it, the first arrival, was 1954 in Le Havre. And back then the State Department, we went over – we spent six days at sea on the S.S. America and the State Department and the United States Government sent us over, the entire family, first class. Don’t get any ideas. (Laughter.) Anyway, I – we went to Berlin, and this was not too long after the war, and I used to ride my bicycle around Berlin, it was my pastime, my passion, and rode everywhere, the Grunewald, around the lakes, up and down the Kurfurstendamm, the church where the steeple burned down, past the Reichstag, burned out, past Brandenburg Gate, past Hitler’s tomb with these amazing, huge concrete slabs blown up. And I just roamed around. It was stunning how little control there was.”

And one day – in my sense of 12-year-old adventure, I think it was then – I used this very passport to pass through into the East Sector, the Russian sector, and I bicycled around, and I’ll tell you, as a 12-year-old kid, I really did notice the starkness, the desolation. In fact, I was thinking about it the other day. If the tabloids today knew I had done that, I can see the headlines that say, “Kerry’s Early Communist Connections,” something like that. (Laughter.) That’s the world we live in, folks.

But I would reassure them by saying I really noticed the difference between the east and west. There were very few people. They were dressed in dark clothing. They kind of held their heads down. I noticed all this. There was no joy in those streets. And when I came back, I felt this remarkable sense of relief and a great lesson about the virtue of freedom and the virtue of the principles and ideals that we live by and that drive us.”

He then makes the case for the virtues of working for the State Department:

“We get to do great things here. This is a remarkable place. And I’m here today to ask you, on behalf of the country, I need your help. President Obama needs your help, to help us to do everything we can to strengthen our nation and to carry those ideals out into the world.

Here, we can do the best of things that you can do in government. That’s what excites me. We get to try to make our nation safer. We get to try to make peace in the world, a world where there is far too much conflict and far too much killing. There are alternatives. We get to lift people out of poverty. We get to try to cure disease. We get to try to empower people with human rights. We get to speak to those who have no voice. We get to talk about empowering people through our ideals, and through those ideals hopefully they can change their lives. That’s what’s happening in the world today. We get to live the ideals of our nation and in doing so I think we can make our country stronger and we can actually make the world more peaceful…. That’s as good as it gets. And I’m proud to be part of it with you. So now let’s get to work.”

Not a bad start.

Dutch Court Issues Mixed Ruling on Shell’s Liability for Nigerian Environmental Claim

by Roger Alford

As we wait with bated breath for the Supreme Court’s decision in Kiobel, it is worth remembering that there are viable alternatives to ATS litigation. That was particularly evident last week when The Hague District Court in the case of Akpan/Royal Dutch Shell. Here’s the Judicial Press Release (translated by Pieter Bekker):

Four Nigerian farmers and fishermen, together with Milieudefensie, commenced the lawsuits in The Netherlands, because they hold four entities within the Shell group, with its headquarters in The Hague, accountable for the damage resulting from four specific oil spills near their villages in Nigeria. The district court has found that the four oil spills were not the result of poor maintenance by Shell, but were caused by sabotage by third parties. Based on the applicable Nigerian law, an oil company in principle is not liable for oil spills resulting from sabotage. On this principal ground, all claims in four out of the five cases have been dismissed. With regard to the four lawsuits regarding an oil spill near the village of Goi in 2004 and an oil spill near the village of Oruma in 2005, the district court is of the view that Shell Nigeria took sufficient measures to prevent sabotage of its submerged oil pipelines. For this reason, and applying the general rule of Nigerian law, the Hague district court has dismissed the claims of plaintiffs Oguru, Efanga and Dooh in those four lawsuits.

In the lawsuit concerning two oil spills near the village of Ikot Ada Udo, the district court has ruled that Shell Nigeria has violated its ‘duty of care’ under applicable Nigerian law and has committed the ‘tort of negligence.’ In 2006 and 2007, an act of sabotage was committed in a very simple way near that village by using an English wrench to remove above-ground heads of an oil well abandoned by Shell Nigeria. Shell Nigeria could and should have easily prevented the sabotage by installing a concrete plug prior to 2006, whereas it only did so in 2010 while the lawsuit was pending. Consequently, the district court has ordered Shell Nigeria (i.e., Shell Petroleum Development Company of Nigeria Ltd, the Nigerian subsidiary of the Shell group) in that case to pay compensation to the Nigerian plaintiff, Mr. Akpan. The amount of compensation will need to be determined in a separate procedure, because to date the parties have only litigated the issue of liability, and the level of damages has not been addressed. Milieudefensie has brought the lawsuits together with the Nigerian plaintiffs. In the view of the district court, Milieudefensie has standing to defend environmental interests in Nigeria before the courts in The Netherlands. However, according to Nigerian law the oil spills in Nigeria are not unlawful vis-à-vis Milieudefensie and for this reason the claims of Milieudefensie have been dismissed.

Dutch courts and the parent companies of Shell The cases have been adjudicated by the Dutch court, because the claims are not only directed at Shell Nigeria, but also target the current British parent company of Shell, which has its headquarters in The Hague. The former parent companies of the Shell group in London and The Hague have also been sued. In interim rulings issued in 2009 and 2010, the district court ruled that it is justified to adjudicate the lawsuits against all Shell entities in The Netherlands, because those lawsuits are all closely connected.

In its final rulings of 30 January 2013, the district court has dismissed all claims against the parent companies, because (in short) under Nigerian law a parent company in principle is not obligated to prevent its subsidiaries from injuring third parties abroad and in the present case there are no special reasons to deviate from the general rule.

Here is a portion of Bekker’s commentary on the ruling (reprinted from OGEMID listserve with Pieter Bekker’s permission):

On January 30, 2013, the district court in The Hague, The Netherlands, announced in a press release that it has ruled that Shell Petroleum Development Company of Nigeria Ltd. (SPDC or “Shell Nigeria”), a member of the Royal Dutch Shell group of companies, is liable to pay compensation to plaintiff Friday Alfred Akpan, a resident of the Nigerian village of Ikot Ada Udo situated in Akwa Ibom State in the Niger Delta. Applying Nigerian law, the Dutch court found that Shell Nigeria had breached its duty of care and had committed the tort of negligence by failing to take sufficient measures to prevent sabotage by third persons to Shell Nigeria’s submerged pipelines near the Nigerian village in 2006 and 2007. The amount of compensation will be determined in a subsequent phase of the proceeding. The full text of the ruling (in Dutch) is yet to be released.

The lawsuit against Shell constitutes the first time that a Dutch multinational has been sued before a civil court in The Netherlands in connection with allegations of damage caused abroad by a subsidiary and appears to be part of a trend of plaintiffs from the developing world turning to the courts in developed countries for redress against multinationals.

Four Nigerian farmers and fishermen, along with Milieudefensie, the Dutch branch of the environmental group Friends of the Earth, had brought five separate lawsuits against four Shell entities and their parent company before the District Court in The Hague, claiming compensation for oil pollution damage suffered locally by the Nigerian plaintiffs in four incidents between 2004 and 2007, and allegedly caused by poor maintenance on the part of the Shell defendants.

The Hague court dismissed all claims in all but one proceeding after finding that the oil contamination was caused by sabotage by third persons as opposed to Shell’s poor maintenance of its local oil installations and that there was no evidence of Shell’s negligence in those cases. Under Nigerian law, an oil company in principle is not liable for oil pollution damage caused by third-party sabotage.

Importantly, the court dismissed all claims against Shell Nigeria’s co-defendant and parent company, Royal Dutch Shell plc, which has its headquarters in The Hague, referring to the general rule of Nigerian law according to which a parent company is not obligated to prevent foreign subsidiaries from injuring third parties abroad and finding no special reasons to deviate from the general rule. The court had found in interim rulings that it had jurisdiction over the claims against all of the Shell defendants because those claims were closely connected.

While the court accepted the Dutch environmental group’s standing to defend environmental interests in Nigeria before the courts in The Netherlands alongside the Nigerian plaintiffs, it rejected the NGO’s claims because oil pollution in Nigeria is not unlawful vis-à-vis the Dutch-based group under Nigerian law.

All plaintiffs have announced that they will appeal the district court’s ruling insofar as it concerns the court’s dismissal of the four other lawsuits and its rejection of the claims against the parent company.

The full text of the opinion (in Dutch) is available here. For more on Dutch human rights and environmental rulings similar to Akpan, see this amicus brief.

As I will discuss in greater detail later, such cases strongly suggest that domestic tort laws may be a viable alternative solution to ATS litigation. There is a wealth of cases (including US cases) applying tort law and conflict of laws that address many of the same factual scenarios that are presented in ATS litigation. Such cases will be particularly important if, as I suspect, the Supreme Court narrowly construes the ATS in Kiobel.

UPDATE: An English translation of the decision is available here.

Legal Systems of the World (Updated)

by Roger Alford

After reviewing the comments from my last post expressing general dissatisfaction with the chart showing the legal systems of the world, I decided to do a little more research to find a more accurate chart.

Fortunately, those efforts paid off in spades, with a series of wonderful charts produced by the University of Ottawa. As you can see, these charts are much more accurate, and in the case of mixed systems provide much greater detail on the nature of each mixed system.

Here are charts for the World, for Africa, North America, and Asia.

Legal Systems of the World Updated

African Legal Systems

North America Legal Systems

Asia Legal Systems

The Legal Systems of the World

by Roger Alford

Legal Systems of the World

In case you ever wanted a snapshot of the legal systems of the world, this handy chart is worth a look. If you follow the link you can get a brief explanation of the legal system of each country, including the historical roots. The orange is common law, the blue civil law, the green mixed, and the red Muslim law.

The biggest surprise from this chart is how many countries are identified as mixed systems. I would have thought that most former British colonies would be identified as common law countries, that most former French, Spanish or Dutch colonies would be identified as civil law, and that most Middle Eastern countries would be identified as Muslim. Not so. The overwhelming majority of nations in Africa, the Middle East, and Asia are mixed systems.

UPDATE: In light of the comments, I have posted a new set of charts that more accurately depicts the legal systems of the world.

David Caron Appointed New Dean at King’s College London Law School

by Roger Alford

Dean CaronMy friend and colleague David Caron, C. William Maxeiner Distinguished Professor of Law at the University of California, Berkeley, has been named the new Dean at the Dickson Poon School of Law at King’s College London. The press release is here.

I have known David Caron for over twenty years and always thought he would make an excellent Dean or Judge. He has tremendous administrative experience, having served at the highest levels at ASIL, the ABA’s Section on International Law, the Law of Sea Institute, and the Institute for Transnational Arbitration.

He also brings a wealth of international law knowledge to the subject, including public and private dispute resolution, international courts and tribunals, the United Nations, the law of the sea, and international environmental law. On top of his academic chops, he remains seriously engaged with the legal profession. He served at Pillsbury Madison & Sutro before joining the academy, regularly consults with law firms around the world, and serves as an arbitrator in various commercial and investment matters.

David not only has a great head he also has a great heart. His enthusiasm is infectious, his laughter contagious, and his genuine warmth toward students and colleagues a model for us all. When I was starting my career twenty years ago in The Hague, he’s the kind of person that I looked to and thought to myself, “I want to be like that some day.”

He will be a great Dean, and will substantially contribute to the global reputation of King’s College.

The Growth of International Law Scholarship

by Roger Alford

There are a variety of ways one can measure the growing importance of international law scholarship. One metric that I have never seen discussed is simple: how often has the term “international law” been used in academic scholarship? Using Westlaw’s JLR library I calculated how often “international law” was referenced from 1987 to 2011. The results are impressive. Twenty-five years ago there were only 706 articles that included that term, compared with 4,300 today. That’s an annual growth rate of 7.5 percent. At that pace, in ten years there will be over 8,800 references to international law, and over 26,000 references in a quarter century.

Growth of International Law

It’s also noteworthy that today’s academic scholarship references “international law” more often than other core terms. Based on a Westlaw JLR search for 2011, “international law” (4,300 references) appears more often than “criminal law” (3,918 references), “intellectual property” (3,233 references), “constitutional law” (3,198 references), “torts” (2,709 references), and “professional responsibility” (1,092 references).

I knew that international law scholarship was popular, but I would not have guessed it has shown such sustained growth across the decades.

UPDATE: Further to Stuart Ford’s comments on January 9, I thought I would post the graph he is discussing. Very interesting as a point of comparison.

Google NGram2

Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy

by Roger Alford

My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. It could do so by holding that the ATS does not apply extraterritorially, or that it does not apply unless there is some U.S. nexus, or that it does not apply to corporations, or that it does not apply without exhausting local remedies, or that it does not apply to certain types of conduct (such as aiding and abetting). But one way or the other, I predict that the ATS as it currently is applied by lower courts will be severely limited.

I say that by reading the tea leaves of the Justices’ votes that are up for grabs. Justice Kennedy asked, among other things, about whether there was a U.S. nexus in this case (page 4), about risks of reciprocal claims brought against U.S. corporations in foreign courts (page 5), about the risk of ATS litigation causing complications with foreign governments (page 10), and about the scope of the presumption against extraterritoriality (p. 37). Several Justices, including Chief Justice Roberts, asked about the possibility of vindicating one’s rights in another forum that has a closer connection to the events or the parties, including the defendant’s domiciliary forum (the United Kingdom or the Netherlands) or the place of injury (Nigeria). None of the swing Justices seemed interested in the concept of universal jurisdiction, except to preserve the Sosa paradigm that embraced piracy on the high seas as an actionable international law violation.

The good news for the plaintiffs is that Paul Hoffman did an exceptional job of trying to make the ATS sound unexceptional. One of his best arguments was that courts have all the tools they need to address the concerns about friction with foreign nations, including the political question doctrine, the act of state doctrine, international comity, forum non conveniens, and personal jurisdiction. In other words, these concerns about tensions with foreign nations are legitimate, but courts already have developed doctrines sensitive to those concerns. When pressed, he was even willing to make more concessions, such as the possible need to exhaust local remedies. The bad news is that the swing Justices did not appear to be buying the argument that the arrows currently in the quivers of the courts are enough to limit the reach of the ATS.

As for extraterritoriality, Hoffmann’s key argument was that the presumption against extraterritoriality is overcome where the purpose of the statute requires its extraterritorial application. The presumption, he argued, “would undermine the very purposes of the statute” which is “the best evidence that we have about what it meant in the era” (page 52). He cogently cited the Bradford opinion as an historical example of what the drafters were thinking in this regard.

To be sure, there is ample Supreme Court case law to support an argument that sometimes the purpose of a statute requires its extraterritorial application. See United States v. Bowman, Blackmer v. United States, United States v. Flores, Cook v. Tait, Browder v. United States. One way to articulate this is to say that the clear intent of Congress is expressed in drafting a statute that necessarily requires extraterritorial application. Whether or not the swing Justices will interpret the ATS in this fashion is anyone’s guess.

Kathleen Sullivan’s key argument was that the presumption against extraterritoriality required clear congressional intent, which she argued was lacking in this case. She then fumbled by trying to argue that the Court’s recognition of piracy in Sosa did not undercut this argument. She should have stuck with her argument about the purpose of the presumption against extraterritoriality—to avoid encroachment on the sovereign prerogatives of other nations to regulate conduct in their territory—and conceded the point about piracy on the high seas as falling within the scope of the ATS. Instead, she argued that pirate ships are mini-foreign countries and tried to argue that that the presumption applied even to pirate ships. It was not a fatal mistake, but it was painful to read.

Sullivan also struggled with Justice Kagan’s creative reverse Marbois question, (page 30-32) which aptly addresses the possibility that foreign tensions can arise from an American’s misconduct against a foreign national on foreign soil, just as much as an American’s misconduct on domestic soil. Sullivan argued that other remedies were available, such as extradition or state law torts for assault. That may be true, but that is also true for an American’s misconduct on domestic soil. Her argument didn’t address the critical question of why Congress believed the ATS was necessary in the first place, and why it should only apply to domestic misconduct by Americans. If concern about foreign friction is what is driving the ATS, she should have taken a page from Hoffman and conceded points that were not essential to her case, such as the possibility that the ATS applied to foreign conduct by an American non-corporate defendant. (That seemed to be Solicitor General Verrilli’s position: that the ATS should only apply where there is a clear U.S. nexus, such as misconduct by an American national on foreign soil or misconduct by a foreign national on U.S. soil.)

So I predict that the ATS as we know it will be curtailed. I don’t know exactly how it will be curtailed, but based on the oral argument today I predict that the future of foreign plaintiffs using the ATS to sue foreign corporations for conduct on foreign soil is in serious jeopardy.