As I was checking my news feeds on Google News, I came across this: The snail photo is not actually part of the Washington Post article. So does that mean Google shares my concern with Libya's endless stall tactics?...
Well, not really. But that's the unintended consequence of yesterday's awful decision in US v. Sterling, in which the Fourth Circuit held that James Risen could not rely on journalist's privilege to avoid testifying against James Sterling, whom the government believes leaked classified information to Risen. According the court, the government is entitled to Risen's testimony, because he is the...
In the wake of the Pre-Trial Chamber's categorical rejection of Libya's admissibility challenge, the Libyan government asked the Appeals Chamber to suspend its obligation to transfer Saif Gaddafi to the ICC pending its appeal of the decision. The Appeals Chamber has now rejected that request and ordered Libya to surrender Saif to the Court. Here are the critical paragraphs of its decision: 24. Libya...
reverse the Ninth Circuit’s decision in Bauman v. DaimlerChrysler. The Justice Department argued that the Ninth Circuit’s 2011 decision finding personal jurisdiction in California over Daimler AG, a German company, for the actions of a subsidiary in Argentina, was “seriously flawed” and contrary to the Supreme Court’s subsequent 2011 decision in Goodyear. The brief faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to “answer in that State for any claim against it, arising anytime, anywhere in the world.”The background to Bauman v. DaimlerChrysler, Bellinger explains, is that in May 2011 a Ninth Circuit panel
held that that Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States. Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.I agree with Bellinger that the likelihood, following Kiobel, is that the Court is moving to restrain jurisdictional assertions by Federal courts, and is pushing back toward stricter grounding in the traditional bases of jurisdiction by national courts. My own larger, political view is that this is connected to a perception that although broad assertions of US jurisdiction through such vehicles as the Alien Tort Statute over foreign parties for acts on foreign territory can certainly be framed as enforcing universal international law through national courts, it is better understood as assertions of something quite different - what I've sometimes called the "law of the hegemon." That is an increasingly contested position as a matter of international politics spilling over into international law, and between the rise of new great powers and the Obama administration's political embrace of decline, it seems to me unsurprising that the Obama administration would embrace a more traditional, much more restrictive understanding of jurisdiction. But it also seems the Court is also generally on board with this pull-back. As Bellinger says, many observers (me included) believe that
the Court would not have accepted the case unless it plans to reverse the Ninth Circuit. Conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.I agree. Despite the obvious clash of approaches between the Roberts majority and the Breyer minority in Kiobel, they do have an important common ground - an intention to limit extraterritorial jurisdiction through a stricter application of the traditional bases of jurisdiction.
We haven't blogged recently here about the Chevron Ecuador case, but over the weekend the Washington Post carried a long analysis and profile by Business section reporter Steven Mufson on the state of play - focused particularly on a Washington insider part of the saga, the involvement of DC lobbying-law firm powerhouse, Patton Boggs. Patton Boggs has been an adviser...