Showing papers in "Notre Dame Law Review in 2014"

The future of human rights litigation after kiobel

Abstract: Introduction This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. (1) As others have argued in this issue, that premise may not be correct. (2) Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief. As outlined below, there are a surprising number of options available under federal, state, and foreign law. The most obvious alternatives are not necessarily the most effective. The Torture Victim Protection Act (TVPA), for example, will be of no value to plaintiffs pursuing claims against corporations or governments. (3) The Racketeer Influenced and Corrupt Organizations Act (RICO) regulates a vast array of unlawful conduct, but has its own territorial limits. (4) State statutes that regulate unfair business practices and consumer fraud are promising avenues to address secondary harms to domestic consumers and competitors, but offer no direct relief to human rights victims. (5) The most important alternative avenue is tort law. (6) Indeed, one could say that the future of human rights litigation in the United States depends on refashioning human rights claims as state or foreign tort violations. Almost every international law violation is also an intentional tort. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. Rather than pursuing claims for wrongful conduct under the ATS, those same victims could plead violations of domestic or foreign tort laws. Courts seized with such claims should apply choice of law principles to assess the appropriate tort law to resolve the dispute. If the United States has a paramount interest in addressing the human rights violation, then that likely will result in the application of domestic tort law. Otherwise, traditional choice of law analysis applied in the international human rights context will often result in the application of foreign tort law. Other avenues for relief remain untested. One of the most uncertain avenues is to plead violations of international law as part of foreign law. (7) If international law has been incorporated into the law of most countries around the world, it follows that a violation of international law will often also be a violation of foreign law. By employing choice of law principles to invoke foreign law, plaintiffs can pursue international law claims incorporated into foreign law. This is most obvious in monist states that directly apply international law into domestic law. But even dualist states implement international law either directly or indirectly. In Kiobel v. Royal Dutch Petroleum Co., (8) for example, the plaintiffs could have alleged human rights violations under Nigerian law because human rights treaties and customary international law form part of Nigerian law. Another untested avenue for relief is to plead federal common law violations of the law of nations in state courts or federal courts exercising foreign diversity jurisdiction. (9) Assuming the statutory presumption against extraterritoriality limits the scope of the ATS and not the underlying federal common law claims, there is nothing to prevent plaintiffs from pursuing common law claims elsewhere. Nor is there anything that prevents state courts from recognizing international law violations as state common law claims. Such claims would not be subject to the statutory presumption against extraterritoriality, but would be subject to territorial limits imposed by constitutional and international law. Finally, if international law forms part of domestic and foreign law, then applying the choice of law doctrine of false conflicts would permit courts to apply the international law that is incorporated into domestic law rather than the international law that forms part of foreign law. (10) In the absence of a conflict between the potentially applicable foreign law and domestic law, the forum is free to apply domestic law. …

Lawyers, Clients, and Mediation

Abstract: That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In this article, Professor Nolan-Haley focuses primarily on client counseling activities and argues that if mediation client counseling is firmly grounded in a deliberative and problem-solving process, the mediated negotiations that follow will be responsive to clients' real needs and interests. In mediation client counseling, deliberation calls for greater attention to the principle of informed consent. Clients must be informed that deliberative counseling has as its goal, informed decisionmaking, both in the attorney-client relationship and in the mediation process. They should be advised of the roles that both attorney and client will play in it. Clients must also be educated about the mediation process and understand its essential differences from litigation. Finally, clients must have a general knowledge about the relevant law governing their case so that during deliberations they may meaningfully evaluate alternative courses of action. Clients' awareness of their legal rights honors the principle of informed consent. The heart of the deliberative process is the exchange of ideas and debate between attorney and client about ends and means, goals and strategies. In this process of co-deliberation, trust is enhanced and the autonomy of both lawyer and client is honored. Trust, an essential part of all human relationships, provides the foundational structure for the mediation counseling relationship.

Life's Dominion: a review essay.

Abstract: There will be no arraignment of Ronald Dworkin for intellectual timidity Life’s Dominion is not only (per its subtitle) an “argument about abortion, euthanasia, and individual freedom” It is a breathtakingly audacious one Dworkin thinks that abortion and euthanasia are prerogatives of the sovereign individual He advocates a practical program indistinguishable from those of, say, the ACLU, Justice Blackmun, and the New York Times editorial board Dworkin argues that, despite overheated appearances to the contrary, we all do, too

No Excuse: The Failure of the ICC's Article 31 "Duress" Definition

Abstract: INTRODUCTION "Your Honour, I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: 'If you are sorry for them, stand up, line up with them and we will kill you too.'" (1) The introductory quotation is taken from the case of Drazen Erdemovic, a soldier in the Bosnian Serb army who was sentenced to ten years in prison after pleading guilty to one count of crimes against humanity for his participation in the execution of innocent civilians during the armed conflict in the former Yugoslavia. (2) The International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber summarized the relevant facts as follows: On the morning of 16 July 1995, Drazen Erdemovic and seven members of the 10th Sabotage Division of the Bosnian Serb army were ordered to leave their base ... and go to the Pilica farm.... When they arrived there, they were informed by their superiors that [busloads of Muslim civilians] would be arriving throughout the day.... The [civilians] were escorted to a field adjacent to the farm buildings where they were lined up with their backs to the firing squad. The members of the 10th Sabotage Unit, including Drazen Erdemovic, who composed the firing squad then killed them.... [Erdemovic] believes that he personally killed about seventy people. (3) Erdemovic made it clear in his testimony that he had no knowledge of the purpose of the mission when he was ordered to report to the site, that his immediate refusal to participate in the killings was met with a threat of instant death, and that he had personally observed another member of his unit ordering the death of a soldier who had refused to take part in the massacre. (4) The question then becomes: Should Erdemovic be treated the same or differently under the law from the other soldiers who participated in the massacre without being under duress or coercion? More importantly, is the moral culpability of Erdemovic the same as the culpability of the willing participants? This Note will focus on analyzing these questions through the lens of "duress" jurisprudence with particular attention devoted to the International Criminal Court (ICC) and the definition of "duress" under Article 31 of the Rome Statute. (5) The question of whether and to what extent duress should be recognized as a defense by the ICC is of immense importance because in situations like those faced by Erdemovic, it could mean the difference between facing decades behind bars and being excused from punishment under a theory of duress. Additionally, the questions speak more to fundamental justice and moral culpability under the ICC and the Rome Statute. The drafters of the Rome Statute had to balance two competing interests: (1) punishment consistent with the moral culpability of the accused actor under duress; and (2) the fear that duress could be used (or even abused) (6) to create a lack of accountability (or impunity) for those brought before the ICC. Unfortunately the latter interest has prevailed, and in adopting the Rome Statute, the international community has rejected a definition of duress based on the actor's moral culpability in their desire to put forward a strong front and send a clear message that the killing of innocent civilians will not be tolerated no matter the situation. Accountability has trumped moral culpability. Article 31 of the Rome Statute makes the unacceptable mistake of combining the elements of duress and necessity into one theory of excuse that includes a proportionality requirement. (7) The ICC should amend Article 31 so that duress is treated separately from necessity, and the proportionality requirement that currently limits the applicability of duress should be removed. Duress is an excuse, not a justification. Necessity is a justification, not an excuse. (8) These two distinct theories of defense must be separated if the Rome Statute is to achieve the fundamental criminal law principle of only punishing actors consistent with their moral culpability. …

The "Constitution in Exile" as a Problem for Legal Theory

Abstract: How does one defend a constitutional theory that's out of the mainstream? Critics of originalism, for example, have described it as a nefarious "Constitution in Exile, " a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible? This objection is overblown. Legal rules don't always directly reflect common agreement; they can also reflect those agreements indirectly, through conventions that operate at a higher level of abstraction. (We can have social agreement that we're bound by the Internal Revenue Code, even though we don't all agree on--let alone remember--everything the Code requires.) So long as we share certain conventions that lead to unconventional conclusions, out-of-the-mainstream theorists can accurately claim to describe our own legal system rather than a foreign or invented one that they hope to impose. The theorists' job is to identify shared premises and to show that they really are shared, even in the face of widespread disagreement at the level of conclusions. In any case, if this kind of objection did have force, it wouldn't be a problem just for out-of the-mainstream theories like originalism. Virtually no modern legal theory accepts every change in constitutional practice as actually changing the Constitution. Because history moves at its own pace, any theory with meaningful conditions for legal change will often be violated in practice. In other words, any Constitution worth its salt will spend a good bit of time in exile. INTRODUCTION Constitutional practice changes. That much is obvious. Right answers on turn-of-the-century law school exams turned into wrong answers by 1937, or 1973, or 2000, or 2014. (1) Vastly different rules and understandings came to be accepted as constitutional law, before each was overthrown and forced to make way for the next. This endless progression of constitutional practices is a "brute fact"--maybe " the brute fact"--"of constitutional history and constitutional interpretation." (2) What Americans seem to accept in practice, though, they largely reject in theory. Most Americans, including most lawyers, don't think we've repeatedly overhauled the Constitution in the last hundred-odd years. We may understand it differently, but we haven't actually changed it. We don't live in a Fifth Republic, the way the French do: we still use the same old text, with only twenty-seven short additions, and call that our fundamental law. What should we make of this gulf between theory and practice? One response is to say, with the practicing lawyer, "so much the worse for theory." The courts will decide whatever they decide. There's no use theorizing about it, except to try to predict what they'll do next; and these "prophecies of what the courts will do in fact ... are what [we] mean by the law." (3) A more common response, at least among academics, is to go back to the drawing board, constructing ever more complex legal theories to force the scatterplot of history into a nice constitutional line. This Article is about a third response: to look at the gulf between theory and practice and say, "so much the worse for practice." Nowadays this view is commonly attributed to originalists--followers, allegedly, of a nefarious "Constitution in Exile," waiting in their subterranean lairs to subdue the populace and abolish the New Deal. (4) Though the "Constitution in Exile" movement may be largely mythical, (5) the idea that constitutional practice may have gone seriously wrong is real enough, and can be found on both sides of the political aisle. Mark Graber, a progressive writing in what he called the "dark times" under George W. …

Alien Tort Litigation: The Road Not Taken

Abstract: When the Second Circuit decided in Filartiga v. Pena-Irala that the Alien Tort Statute (ATS) provided a federal forum for international human rights claims, no one would have predicted that thirty-three years later in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court would use the presumption against extraterritoriality to limit those claims. This essay recounts some of the doctrinal developments in alien tort litigation during the intervening thirty-three years. After Filartiga, courts faced a choice whether to apply international law as the rule of decision, or the law of the place where the tort occurred. Courts chose the international law road, with U.S. law providing the cause of action and the rules for damages. The Supreme Court ratified this choice in Sosa v. Alvarez-Machain, clarifying that the cause of action came not from the ATS itself but from federal common law. In the battles over aiding and abetting liability that followed, plaintiffs argued that federal common law should govern just about every issue of ATS litigation except the initial violation of international law, while defendants and the Bush Administration argued that the presumption against extraterritoriality should apply to the federal common law cause of action, the position the Supreme Court accepted in Kiobel. This essay argues that the early decisions to apply international law rather than the lex locus delicti as the rule of decision in alien tort litigation ultimately provided the doctrinal hook for the Supreme Court to restrict alien tort suits with the presumption against extraterritoriality. It also glances briefly down the road not taken.

The curious history of the alien tort statute

Abstract: INTRODUCTION The Alien Tort Statute (ATS) (1) has provoked extensive, passionate debate, despite the relatively modest practical import of ATS cases. The outsized controversy surrounding the statute reflects its role in a longstanding struggle for control over the interpretation and enforcement of international law, and over whether that law will serve as a meaningful restraint on the actions of states, state officials, and corporations. As a result, the history of the ATS offers a unique window into the modern history of international law. Since the 1980 Filartiga decision first applied the eighteenth century statute to modern human rights claims, (2) only a handful of lawsuits have produced enforceable judgments for plaintiffs, while another handful settled, and a few dozen cases led to judgments that vindicated the plaintiffs' claims, but could not be enforced. Despite this limited litigation success, government officials, scholars, litigators, human rights activists, business leaders, and law students have written about the statute, (3) sought to replicate or repeal it, and argued about its impact. The Supreme Court decided ATS claims three times in the past ten years, in cases that attracted scores of amicus briefs. The executive branch has filed briefs or statements of interest in ATS cases at all levels of the federal court system. Business leaders assert that the ATS could derail the international economy, while human rights advocates praise the statute as a significant mechanism to attain human rights accountability. The uproar surrounding the ATS reflects its position at the intersection of highly contentious modern disputes about international law. By authorizing private parties to bring claims for violations of human rights norms, ATS litigation institutionalizes a role for individuals and other non-state actors in the definition and implementation of international law, a role that, traditionally, states and state-run international organizations have monopolized. By raising such issues in the federal courts, modern ATS cases trigger highly contested questions about the roles of the three branches of the federal government in regulating the incorporation of international law into U.S. law. Despite its implications for these broader questions, however, the ATS remained relatively noncontroversial as long as the practical implications of the cases seemed minimal. However, when ATS claims began to target transnational corporations and government officials from the United States and its allies, both sectors reacted as if the very future of global capitalism and diplomatic relations were at risk. Debates about the ATS mirror debates about international law. Both trigger concerted opposition when they threaten to serve as a viable constraint on government and corporate conduct. This Article offers a history of the ATS that analyzes the cases, the doctrinal debates, and the responses of human rights groups, business interests, and government actors in the context of the larger battle over international law and human rights. The story begins in Part I with one of the few noncontroversial aspects of the statute: the well-known history of the ATS as a reflection of the Framers' decision to grant the national government control over foreign affairs, including enforcement of at least some norms of international law. The statute was largely ignored for almost 200 years, until, with the human rights movement of the late twentieth century as a backdrop, federal court decisions recognized the ATS as a means to enforce human rights norms. Part II describes the rapid expansion of human rights activism in the 1970s, the Filartiga decision, and the relatively uncontroversial ATS cases that followed. Although there were dissenting voices, early ATS cases and commentators generally welcomed ATS litigation as a key part of a movement to offer redress, accountability, and justice to victims and survivors of human rights abuses. …

Banking and the Social Contract

Abstract: INTRODUCTION "[Government] support cannot go on forever, which underlines why the Social Contract for banks must be redrawn." (1) --Paul Tucker, Deputy Governor of the Bank of England Paul Tucker made a prescient comment while perhaps unintentionally coining the perfect terminology to describe the current problem in banking: the social contract between the government and banks is out of balance, due primarily to the increased size and power of a number of banks. This Article will, for the first time, describe the social contract in banking and explain how it has gone awry. The recent financial crisis provides a compelling illustration of my argument. In 2008, Treasury Secretary Henry Paulson sold the Troubled Asset Relief Program (TARP) to Congress and the public as an undertaking that would help relieve Americans' mortgage debts through modifications and other direct relief. Congress passed the Act, and Henry Paulson immediately took advantage of the broad discretion given to him under TARP to inject billions of dollars directly into the country's largest banks by purchasing preferred shares. (2) Paulson reasoned that this was necessary to allow these banks to start lending again. However, the deal struck with the banks provided no requirements or incentives to actually increase lending. (3) Once the banks had money in hand, it became apparent that they had no intention of using the funds to facilitate credit. (4) In response to the voiced outrage of several Congressmen and public figures over the diversion of funds from the public to the banks, the Treasury Department proposed and Congress approved another program in March 2009. The Home Affordable Modification Program (HAMP), a $50 million TARP carve-out, would go directly to homeowners and fulfill the original purpose of TARP by restructuring mortgages to make them more affordable and decrease the number of foreclosures. (5) Incredibly, these funds also ended up going directly to banks. In fact, HAMP's faulty design caused many problems for mortgage borrowers across the country. When Treasury Secretary Timothy Geithner was asked about HAMP's failures to help mortgage borrowers, his response was one of most telling exchanges of the financial crisis: "We estimate that [the banks] can handle ten million foreclosures, over time.... This program will help foam the runway for them." (6) When asked about the one program that was specifically targeted to help the American public, the Treasury Secretary responded that it would make banks more profitable. (7) This revelatory comment is at the heart of the misunderstanding that has pervaded American banking policy for the past 30 years. The misunderstanding concerns the nature of the relationship between banks and the state. One consequence of the confusion is the Treasury's assumption that the government's paramount objective is assuring bank profitability. To be sure, regulators should work to secure a profitable and successful banking industry, but bank profitability is a means to an end and not an end itself. The proper end is ensuring that the nation's banks do what the public needs them to do and not the other way around. The public needs a safe and reliable banking system, without which the economy cannot reach optimal performance. Banks also need government support, without which their customers would lack sufficient trust to permit them to function properly. Thus, banks and the government are engaged in a partnership or agreement. The basic agreement consists of a government promise that it will protect banks from runs, liquidity shortages, and investor irrationality, and a promise made by banks that they will operate safely, play their essential role in financing the expansion of the economy, and serve the needs of their customers and local communities. This arrangement has been effective for much of U.S. history and is still intact with regard to most U.S. banks, but it has fallen apart with the largest and most powerful banks, those that have been called "Too Big To Fail. …

Market Power Without Market Definition

Abstract: Antitrust law has traditionally required proof of market power in most cases and has analyzed market power through a market definition/market share lens. In recent years, this indirect or structural approach to proving market power has come under attack as misguided in practice and intellectually incoherent. If market definition collapses in the courts and antitrust agencies, as it seems poised to do, this will rupture antitrust analysis and create urgent pressures for an alternative approach to proving market power through direct evidence. None of the leading theoretic approaches--such as the Lerner Index or a search for supracompetitive profits--provides a robust solution. Further, one of the core premises in modern antitrust analysis--that the presence of high entry barriers is necessary to market power--is deeply flawed. Counterintuitively, the higher the entry barriers, the less likely it is that (1) the accused firm engaged in anticompetitive conduct and (2) the market would have been more competitive but for the alleged conduct. A robust approach to market power would require a tight nexus between the challenged conduct and a plausible competitive counterfactual. This Article articulates first principles of market power, diagnoses sources of confusion in the current caselaw, and scrutinizes the recognized methods of proving market power without reliance on market definition and market shares. INTRODUCTION Market power is an indispensable element in all antitrust cases except for those arising under the Sherman Act's rule of per se illegality. (1) Merger, monopolization, and rule of reason cases--the bulk of antitrust--require proof of market power to establish liability. (2) A showing of defendant market power has long been a "screen" through which plaintiffs must pass before advancing the merits of their complaint. (3) Traditionally, courts have required plaintiffs to prove market power by showing the defendant's share of a properly defined relevant market and then examining other structural factors such as entry barriers, demand elasticity, pricing transparency, and customer strength. (4) Market definition has been the necessary first step in this analysis and, because of its technical difficulty, a breaking point for many antitrust complaints. (5) In recent years, however, traditional market definition has come under severe attack in the legal academy and in the antitrust agencies. In 2010, the Justice Department and the Federal Trade Commission (FTC) drastically revised their Horizontal Merger Guidelines (Horizontal Merger Guidelines or Guidelines) and demoted market definition from the critical starting point to merely one available tool in merger cases. (6) Afterwards, Louis Kaplow, one of the most widely respected theorists of antitrust, published an article in the Harvard Law Review essentially calling the entire enterprise of market definition intellectually bankrupt and questioning whether market definition should ever be required. (7) Shortly thereafter, Herbert Hovenkamp, another highly respected antitrust academic and the senior author of the extraordinarily influential Areeda Antitrust Law treatise, (8) published a paper questioning the need to define markets in merger cases. (9) Given these and other developments, the handwriting is on the wall for market definition. If market definition falls, so does the entire structure of analysis built on top of it--which is to say, a whole lot of antitrust law--unless a suitable replacement can be found. But there is no clear candidate to take the place of traditional market definition as an indirect means of proving market power. While some caselaw recognizes the theoretical availability of "direct" approaches to proving market power (10) and academic theories abound, the existing theories and doctrines are a smorgasbord of incompatible and often incoherent recipes. Antitrust's analytical core is crumbling and there is no clear replacement. …

The curious incident of the supreme court in Myriad Genetics

Abstract: © 2014 Dan L. Burk. Often what is not said is as significant as what is said. In its recent Myriad Genetics decision, the United States Supreme Court is curiously silent about the relationship between its holding in that case and the holding in its immediately previous patent subject matter case, Mayo v. Prometheus. This reticence is all the more puzzling given that the Court initially remanded Myriad to the lower courts for reconsideration in light of the Mayo holding. The Court's silence regarding Mayo leaves uncertain the relationship between the products of nature doctrine that serves as the basis for the Myriad decision, and the laws of nature doctrine that has been the basis of nearly all of its other subject matter cases. In this Article I assemble the clues in the laws of nature cases to suggest what the Court might have said or might still say regarding products of nature.

Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends

Abstract: INTRODUCTION A primary function of legal scholarship is to incubate ideas to inform the bench and bar. Yet several Supreme Court Justices have recently spoken out publicly about what they consider the growing irrelevance of academic legal scholarship (1) (though empirical findings suggest the continued utility of law reviews to judges). (2) The legal academy sometimes entirely misses what turn out to be major and decisive legal issues in prominent areas, not recognizing them at an early stage and dismissing their importance later on. For example, the great majority of professors dismissed the notion that the Patient Protection and Affordable Care Act (Obamacare) could violate the Commerce Clause. (3) The ruling in Kiobel v. Royal Dutch Petroleum Co. (4) similarly blind-sided the academy. The case involved one of the most important, contentious, and dynamic aspects of U.S. foreign relations law--the ability of foreigners to sue in U.S. courts for extraterritorial violations of customary international law (CIL) under the Alien Tort Statute (ATS). (5) Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy--the presumption against extraterritoriality. Despite an extensive academic literature on the statute, (6) the Court's decision was not anticipated by commentators, (7) or for that matter, litigants and inferior judges, making it in some ways a bigger shock than the Obamacare ruling. (8) Indeed, the issue had not even been part of the litigation in Kiobel until the Court raised it sua sponte during oral argument (9) of an entirely different ATS issue. (10) Subsequently, the Court surprised observers by calling for further briefing in the next term. (11) This finally inspired a sudden academic interest in the extraterritoriality questions. Even then, the Court's unanimous acceptance of some extraterritoriality limitation came as yet another surprise to most observers, (12) who predicted a split along more ideological lines. (13) This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of global developments. The story of the winning argument in Kiobel is interesting not just for ATS purposes, but as a case study in the path dependence of legal doctrine and of agenda setting by the Supreme Court and the Justice Department. Amazingly, the issue that won in Kiobel, foreclosing most ATS litigation, had never been examined in a law review until a 2003 student note. (14) No court ruled on it for three decades. (15) Even in Kiobel, the issue had not been raised below or by the litigants. Thus, the Supreme Court sua sponte raised an issue in the absence of any division of the lower courts or substantial academic controversy. Yet Kiobel can be understood as not involving the extraterritoriality presumption, but rather its more obscure cousin--the presumption against universality. ATS "foreign-cubed" cases have no U.S. nexus, unlike the typical case raising extraterritoriality concerns. This Article describes the implicit presumption against universality that, while not having a name, has guided courts since the early Republic. It also comprehensively canvasses all statutes under which universal jurisdiction (UJ) has been exercised and finds that, aside from the ATS, Congress always explicitly creates UJ. Moreover, the universal cognizability of a crime in international law is neither necessary nor sufficient for UJ status in U.S. law. This contradicts a major argument for UJ under the ATS--that its reference to international law demonstrates and implies a maximal application of UJ. While Kiobel was a surprise from a domestic law context, it fits perfectly into broader patterns in international law. Universal jurisdiction, which had seemed an ascendant law doctrine in the 1990s, has in the past decade encountered a significant backlash, leading ultimately to its destabilization and retrenchment. …

The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power

Abstract: The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions--literally in a multiplicity of hands--effectively precluding its unilateral or precipitate exercise by a single person. The standard narrative posits that the radically decentralized nature of federal judicial power is a vice, rather than a virtue, because it renders federal law, including constitutional law, non-uniform based solely on the accident of geography. This Article challenges the received wisdom, contending that the radical division of judicial authority makes perfect sense. Consensus among the disparate federal courts serves as a highly valuable means of legitimating the exercise of judicial review (notwithstanding the lack of a democratic mandate). The creation and maintenance of a highly decentralized system of federal and state courts exists by design, not accident. Greater centralization of judicial power easily could be achieved, yet we should think twice before abandoning our present system precisely because decentralized judicial deliberation improves and enhances the process of resolving difficult questions of fundamental importance. We should not reflexively accede to the suzerainty of uniformity as the paramount value in judicial decision making; instead, we must carefully consider the potential benefits associated with decentralizing judicial power by denying any one person--or juridical body--the exclusive power to exercise "[t]he judicial Power of the United States." INTRODUCTION In many contexts and all too often, the familiar escapes careful or thoughtful consideration. Precisely because it is familiar, we unconsciously assume it to be fixed and unchangeable; indeed, we come simply to accept it as a background condition. This general principle holds true with respect to both law and legal institutions. For example, few reasonable people would agree to create a legislative body in which California, with over 30 million citizens, enjoys the same representation and voting power as Wyoming or North Dakota, which each have less than a million residents. (1) As Professor Sanford Levinson observes, "[t]he equal-vote rule in the Senate makes an absolute shambles of the idea that in the United States the majority of the people rule[s]." (2) Yet, path dependence seems to insulate this institution from sustained public criticism as radically undemocratic; most people in the contemporary United States simply accept the equal representation of the states in the Senate. Thus, an historical anomaly associated with the Connecticut Compromise goes largely unchallenged. (3) In a similar vein, relatively little sustained attention has been devoted to the institutional structure of the federal courts. (4) The institution includes the Supreme Court of the United States, U.S. courts of appeals, and U.S. district courts. Moreover, the state judiciaries also should be included on any flow chart of the exercise of judicial power over federal questions given that these courts also routinely hear and decide important questions of federal law. Despite the central importance of institutional structure to the exercise of "[t]he judicial Power of the United States," we tend not to think very much-or very carefully--about either the structure of the federal courts or the Office of Chief Justice. We ought to pay closer attention to this very familiar office and also to the broader question of the institutional structure of the federal judiciary itself. …

Quasi-Inquisitorialism: Accounting for Deference in Pretrial Criminal Procedure

Abstract: b. Professional and Organizational Expertise In so stating, the Court in Sitz relied heavily on another, quasi-inquisitorial theme: the conception of law enforcement activities, particularly at the operational rather than individual level, as rooted in professionally and organizationally imparted expertise. (147) Thus, with regard to effectiveness review, the Court declared: Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers. (148) Consider as well the Court's more contemporary statement in its recent decision on the use of drug-sniffing dog alerts in warrant applications. Permitting such use without resort to "inflexible" or "technic[al]" evaluation of the dog's reliability, and instead deferring to departments' own choices in certification or training regimes, the Court expressed confidence that "law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources." (149) These sentiments cast the police and prosecutors who invented the Michigan sobriety checkpoint as law enforcement technocrats, knowledgeably and properly incentivized (more so than courts) to pursue legitimate criminal problems through reasonable means. It is well to point out that much of this is of a piece with the observation, made by others, that the Court's Fourth Amendment decisions have tended increasingly to elevate the venerable police "hunch" to the status of expertise. (150) Indeed, even in Brignoni-Ponce and Brown, in which the Court rejected the states' suggestion that police could stop without articulating the basis for their suspicion, the Court emphasized that an "articulable" basis might arise from any number of factors, and that reviewing courts must consider that trained law enforcement agents may be "able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer." (151) But the exclusionary rule cases demonstrate that the point here is somewhat different, highlighting not so much the Court's deference to individual officers' "commonsense" through learned "judgments and inferences about human behavior," (152) but rather its conception of the law enforcement profession as having developed and systematically inculcated expertise beyond the ken of judiciary. If the individual officer is concededly engaged in the "often competitive enterprise of ferreting out crime," (153) the organizational and professional vehicles for imbuing her with training and expertise might still mitigate that bias. In the Fourth Amendment context, this conception of professional and organizational expertise and an organizational incentives structure that adequately internalizes accuracy values as a substitute for judicial scrutiny is nowhere more pervasive than in contemporary exclusionary rule jurisprudence. The notion surfaced in sporadic, if spirited, fashion, in the first two decades of the life of the good faith exception to the exclusionary rule, adopted in United States v. Leon. (154) Indeed, debates concerning the good faith exception, as reflected in Leon itself, were heavily concerned with whether the exclusionary remedy was necessary in order to bring about or ensure professionalized, well-trained, well-incentivized police departments; the Leon majority, however, was confident that an exception from exclusion for "objective[ly] reasonable [ ]" police error would not undermine a regime of "police training programs" that "are now viewed as an important aspect of police professionalism. …

Determining Which Human Rights Claims "Touch and Concern" the United States: Justice Kennedy's Filartiga

Abstract: INTRODUCTION If statutes were zombies, the Alien Tort Statute of 1789 (1) (ATS) would lead the undead who walk among us. By one conventional narrative, the statute arose from the misty eighteenth-century murk, then lay moribund for nearly two centuries until 1980, when the Second Circuit breathed a strange new life into it with Filartiga v. Pena-Irala. (2) That decision then remained a "monstrous" curiosity (3)--generating more academic conferences than cases and more awards of tenure than damages--until 1984, when the Court of Appeals for the District of Columbia Circuit decided Tel-Oren v. Libyan Arab Republic. (4) The three-way split among the panel in Tel-Oren suggested that there was no consensus that Filartiga had been rightly decided, and the death watch began in earnest, even as the years passed and jurisdiction was sustained in numerous cases that fit the Filartiga model. This issue of the Notre Dame Law Review, in assessing the impact of Kiobel v. Royal Dutch Petroleum, (5) marks the thirtieth anniversary of the statute's first premature obituary. Like the proverbial reports of Mark Twain's demise, it is easy to exaggerate the death of alien tort litigation in the aftermath of Kiobel. After all, the Supreme Court there decided--unanimously for the second time in nine years (6)--that the ATS does not provide jurisdiction in a high-profile case, deploying a rhetoric of caution in the interpretation of this ancient statute. Equally significant, the majority in Kiobel expanded the existing presumption against the extraterritorial application of U.S. law, (7) applying it for the first time to a purely jurisdictional statute instead of substantive statutes like the securities laws, (8) antidiscrimination laws, (9) and labor laws. (10) The essential problem with this approach is not that courts, litigators, and scholars failed to anticipate the issue. (11) To the contrary, over the decades since Filartiga, extraterritoriality and the related choice of law issues have frequently been front and center at the pre-trial stages of ATS litigation. (12) The problem with the majority's approach in Kiobel is instead that it contradicts the Supreme Court's own precedents and leaves the lower courts with precious little guidance in determining the circumstances under which the presumption against extraterritoriality might be overcome in future ATS cases. In this Article, I show that what guidance there is in Kiobel emerges not from the majority opinion but from the concurrences, especially the cryptic single paragraph from Justice Anthony Kennedy. I. SOSA, THE PRESERVATION OF FILARTIGA, AND REVISIONISM 2.0 In Sosa, the Supreme Court determined conclusively that the ATS was purely jurisdictional, (13) an issue on which the lower courts had been divided ever since Judge Bork's separate opinion in Tel-Oren. (14) It also ruled that the statute had effect from the moment of its enactment. (15) That was a critical analytical move, because it meant that the ATS did not lie dormant until such time as Congress might see fit to define and implement the norms that would fall within the subject matter jurisdiction of the federal courts. To the contrary, even without that congressional action, the statute "enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law." (16) In short, the Sosa Court established that the ATS does not create a cause of action, but that it does recognize a cause of action, derived from the common law, for certain violations of international law: "The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time." (17) Sosa thus requires that the tort be "committed" in violation of international law, not that international law itself recognize a right to sue in domestic courts and not that Congress adopt implementing legislation defining the wrong. …

Things We Do with Presumptions: Reflections on Kiobel v. Royal Dutch Petroleum

Abstract: INTRODUCTION The Court in Kiobel v. Royal Dutch Petroleum Co. relied on the presumption against extraterritoriality in declining to recognize a federal cause of action for the defendants' alleged breaches of customary international law. (1) The bulk of Chief Justice Roberts's opinion for the Court defended the applicability of the presumption to the claims brought under the Alien Tort Statute (ATS). (2) As Justice Alito's concurring opinion noted, however, the Chief Justice's opinion adopted a "narrow approach" that "[left] much unanswered." (3) Similarly, Justice Kennedy's concurrence observed that the Chief Justice's opinion properly "[left] open a number of significant questions." (4) In determining what exactly the Court decided in Kiobel and what it left undecided, it is useful to distinguish several things that might be done with a presumption such as that against extraterritoriality. Most straightforwardly, the courts apply the presumption in interpreting federal statutes. Specifically, they use the presumption in determining the applicability of the statute to claims based partially or wholly on conduct that occurred outside United States territory. On the assumption that Congress legislates with domestic conditions in mind, a court applying the presumption interprets a statute not to apply "extraterritorially" unless Congress has expressed a contrary intent. A threshold question when a court is asked to apply the presumption against extraterritoriality is whether the presumption is applicable to the type of statute in question. With respect to certain types of statutes, application of the presumption against extraterritoriality would not advance the purposes of the presumption. I argue in Part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. I argue further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court's opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain. Even when the presumption against extraterritoriality is applicable, courts will not always conclude that the statute does not apply extraterritorially. Although the courts presume that Congress meant for the statute to apply only domestically, that presumption can be rebutted or overcome. The usual way in which the presumption can be rebutted or overcome is through sufficient evidence that Congress meant for the statute to apply extraterritorially. In some cases, the Court has focused exclusively on the statute's text, suggesting that the presumption against extraterritoriality is a clear statement rule that can be overcome only by clear statutory language. (5) But, in Morrison v. National Australia Bank Ltd., the Court recognized that "context" can be taken into account as well. (6) And, in Kiobel, the Court recognized that a statute's "historical background" might also "overcome" the presumption. (7) These methods of rebutting or overcoming the presumption are discussed in Part II. When a court finds the presumption applicable and not rebutted or overcome, it must determine whether the statute applies to the particular case before it. As the Court recognized in Morrison, a non-extraterritorial statute might reach a case based on conduct that is partly foreign and partly domestic. (8) Applying the presumption in such a case, the Court explained, requires identification of "the 'focus' of congressional concern" under the relevant statute. (9) If the statute is non-extraterritorial, the conduct that was the focus of congressional concern must have occurred in the United States. When a court determines the statute's applicability to the facts of a particular case, it might be said to be determining whether the presumption has been satisfied in the particular case. …

We the People: Juries, Not Judges, Should Be the Gatekeepers of Expert Evidence

Abstract: On August 18, 2007, Matthew Valente became paralyzed below the waist with partial paralysis to his upper body from a golf cart accident.2 At the time of the accident, Valente was eighteen years old and working as a cart and range attendant at La Tourette Golf Course on Staten Island.3 Valente’s work responsibilities included driving and transporting golf carts. La Tourette properly trained Valente on how to operate the golf carts. On the day of the accident, Matthew was driving an E–Z–Go golf cart manufactured by Textron.4 The golf carts did not have seatbelts or four-wheel brakes.5 Valente was driving on the cart path when his hat blew off.6 He applied the brakes, turned the wheel slightly, and the golf cart fishtailed, rolling over onto its passenger side, leaving Valente with a spinal fracture and paralyzed.7 Valente and his father brought a products liability suit against the manufacturer of the golf cart.8 Despite his efforts, Valente’s case never made it to