Archive | Federal Jurisdiction

How Broader Acceptance of Universal Jurisdiction Makes it Look Worse

At JustSecurity, Ryan Goodman challenges the methodology of Amnesty International’s updated report of universal jurisdiction, which finds the vast majority of nations implement UJ in their legislation. Prof. Goodman argues Amnesty over-counts (see Kevin Jon Heller’s dissent).

Yet even if Amnesty’s numbers are accurate, they may actually paint a dismal picture of UJ.

The broader question is whether legislation is what we should be counting, rather than cases. As for the actual exercise of UJ, a comprehensive study by Maximo Langer has found only 32 such cases have gone to trial since World War II. Three-quarters of these involved defendants from three particular conflicts that had been made the subject of extraordinary international tribunals (Rwandas, Yugoslavia, Germany).

I discuss trends in UJ in Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends, forthcoming in the Notre Dame Law Review. State practice has been moving away from exercising UJ, and Kiobel is the latest example. As I write:

As a proportion of cases that qualify for UJ prosecution, the enforcement rate approaches zero. Of course, a major practical limitation for criminal UJ is obtaining custody over the world’s war criminals and genocidaires… Even given this limitation, the exercise of UJ is extremely rare. For example, in Britain the Home Office is aware of nearly 700-800 suspected war criminals residing in Britain; over 100 applied for asylum in 2012 alone. Yet the government only seeks to return those against whom there is credible information to their home countries. Indeed, while Britain provided a massive publicity boost for universal jurisdiction in the Pinochet case (which itself did not directly raise universality issues), it has only universally prosecuted two defendants – an Afghan paramilitary officer and a Nepalese colonel, both for torture. Both defendants resided in Britain, and had committed

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Thanksgiving for Purported Pirates in Russia and the U.S.

It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about both here before.

Both very different cases have one thing in common – aggressive charges of piracy for conduct that has never been treated as such.

Russia had arrested the Greenpeace provocateurs on the high seas for piracy, though their actions clearly did not constitute the crime. However, piracy is the only legal basis for seizing a vessel on the high seas. Afterwards,hooliganism charges were substituted for piracy, making the “Arctic 30” a kind of international Pussy Riot.

Holland, the flag state, brought Russia before the International Tribunal for the Law of the Sea, which just ordered Moscow to promptly release the vessel and crew. While the latter are now out on bail (but must stay in Russia), Russia has announced that it will not comply with the prompt release order (see Julian Ku’s discussion). Interestingly, Russia had complied with ITLOS rulings in two prior cases. But that was before the U.S.’s withdraw from global power invited Russia to strut like a Power again. (And its neighbors have noticed, and already turned from the West and come to kiss the ring.)

I’ve written about Ali’s case before: he was charged with piracy on the high seas, though his only role was as an ex post negotiator. No one had ever been charged for “high seas” piracy for after-the-fact dry land activity – the essence of piracy is its location. And this is especially true in a universal jurisdiction [...]

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The Obamacare Fix’s Legality, State Law and Standing

I have a piece in POLITICO discussing the constitutional problems with the ObamaCare fix, which have been previewed here before. One aspect is whether state officials can ignore ObamaCare and instead apply “The Fix.” Regardless of the discretion President Obama has, state officials do not have enforcement discretion over federal law. It is just supreme, and even if the president ignores it, state officials can not.

Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.

But many parts of Obamacare do have to be applied by states, the traditional front lines of insurance regulation. States, however, lack “enforcement discretion” when it comes to ignoring federal law, even when the president thinks it would be a good idea. As the president has often reminded us, the ACA is “the law of the land,” and remains so after the fix.

The Constitution’s Supremacy Clause makes federal law—not presidential policies— binding on the states. So what’s a state insurance commissioner to do? Federal law requires health plans to have a mandatory level of “minimum coverage.” Thus it is not clear how a state insurance commissioner can authorize a plan that violates federal law.

But state officials may encounter the ACA in different ways. In some states, it will have the general preemptive force of federal law. So states that authorize non-compliant plans pursuant to the Fix would be in conflict with federal law.

A more interesting scenario involves states that have passed “conforming legislation” to “domesticate” the ACA to make it more convenient to enforce. In such states, the ACA is both federal and state law, and at the [...]

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New Paper: “Kiobel Surprise: Unexpected by Scholars But Consistent with International Trends”

My article on Kiobel v. Royal Dutch Petroleum is up on SSRN. It is forthcoming in the Notre Dame Law Review‘s Federal Courts Issue.

Here is the abstract; comments on the article are welcome:

The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious and dynamic aspects of U.S. foreign relations law, the Alien Tort Statute (ATS). Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy – the presumption against extraterritoriality.

Amazingly, despite an extensive academic literature on the ATS, the winning issue in Kiobel had never been examined in a law review until a 2003 student note. No court ruled on it until 2010. Indeed, the issue had not even been part of the litigation in Kiobel until the Court sua sponte raised it during oral argument. Finally, the Court’s unanimous endorsement of an extraterritoriality limitation came as yet another surprise to most observers, who predicted a split along more ideological lines.

The story of the extraterritoriality issue in ATS litigation is a case study in the path dependence of legal doctrine and of agenda-setting by the Supreme Court and the Justice Department. This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of international trends in universal jurisdiction. The Article also considers possible reasons for this academic oversight. While normative approval of ATS litigation no doubted contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. It demonstrates the power of sub silentio decisions: while courts had never dealt with presumption in ATS cases, most observers assumed the issue to have been

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My SCOTUSBlog Argument Recap of Walden v. Fiore

There were a lot of high-profile cases argued at the Court this week, but one case that was argued was Walden v. Fiore, the personal-jurisdiction/venue dispute about a deputized DEA agent who seized a bunch of money from some professional gamblers. I’ve posted my assessment of the oral argument at SCOTUSBlog:

As the first few minutes of oral argument in Walden v. Fiore unfolded on Monday, Walden’s counsel, Jeff Bucholtz, must have been pretty optimistic. For several minutes, the Justices’ questions focused entirely on which of the two questions Walden ought to win on — the personal jurisdiction question or the venue question. . . .

But as the Court began to discuss the personal jurisdiction question, it seemed to find it slightly trickier. . . .

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My SCOTUSBlog Argument Preview on Walden v. Fiore

I have just posted my first post as an occasional blogger on SCOTUSBlog — a preview of the argument next week in Walden v. Fiore. An excerpt:

The facts sound like the beginning of one of the Court’s many constitutional tort cases. Gina Fiore and Keith Gipson are professional gamblers who were — like millions of other travelers every year — changing planes at Atlanta’s Hartsfield-Jackson airport. Fiore and Gipson were carrying $97,000 in cash, much of which they’d won gambling in San Juan, Puerto Rico, and were returning to their home in Nevada.

The cash aroused the suspicions of law enforcement at the Atlanta airport, and the two travelers were questioned by Anthony Walden, a local police officer and deputized Drug Enforcement Administration agent, who eventually seized all of their money for possible forfeiture. …

The lawfulness of Walden’s conduct (and the factual truth of the plaintiffs’ allegations) is not before the Court. Instead, the issue presented by this case is whether Walden can be sued in a federal court in Nevada. That controversy raises questions of both personal jurisdiction and venue. . . .

I’ll be blogging at SCOTUSBlog on some procedural and jurisdictional topics in the future; I haven’t yet decided how frequently I’ll be linking to them from here. [...]

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Colgan on Retroactive Sentencing for Juvenile Offenders

A month ago, I linked to a short post I wrote for the New York Times about retroactive sentencing for juvenile offenders under Miller v. Alabama. In the piece, I was skeptical that the Court’s decision would be retroactive under federal law, since the Supreme Court’s decision focused on the right to a hearing.

My former Stanford colleague Beth Colgan now has a piece in the UCLA Law Review Online, making the opposite case. She argues that Alleyne v. United States — a decision from last term about mandatory minimums and jury trials — has surprising implications for retroactivity analysis. I’m not sure I agree, but Colgan’s article is the best thing I’ve read on that side of the debate.

By the way, you may have noticed that online law reviews are publishing a lot these days, and they seem to be where a lot of the shorter (sometimes very short) scholarship is going — a fact that may be relevant to the debate about article length below. For more thoughts on the changing role of online law reviews, see this post by Howard Wasserman. [...]

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Supreme Court Discussion of Academic Amicus Brief

An academic amicus brief got heavy attention in the Supreme Court today (and no, it wasn’t Steve Sachs’s — that case will be argued Wednesday). As Lyle Denniston explains at SCOTUSBlog, in Madigan v. Levin, an age discrimination case from the Seventh Circuit, “a brief that had been filed by law professors who specialize in the arcane field of court procedure had obviously drawn the Court’s attention,” and the Court spent several minutes at the start of argument seriously questioning the Seventh Circuit’s jurisdiction.

For those interested in this “arcane field” of pendent appellate jurisdiction, the brief is by Steve Vladeck, and a link is here. The transcript is here, and discussion of jurisdiction starts on page 3. The argument in the brief overlaps heavily with Vladeck’s recent article, Pendent Appellate Bootstrapping, in the Green Bag. Who says legal scholarship is irrelevant to what courts do? [...]

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