How to Put a Computer in a Picture Frame

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My home computer died last week, as a result of what appears to have been a suicide pact between my CPU and my motherboard. That’s my excuse for the lack of recent updates, anyway.

But while I didn’t have a chance to do any blogging, I did have a good excuse to rebuild my computer. Here’s the result:

Picture Frame Build 2

Space-saving, plenty of airflow, and no more reaching down to plug or unplug USBs. Also economical — it saves you from the expense of having to buy both a computer case, and also a picture to hang over your desk.

Of course, if I tried to make another one, there are definitely a few things I would do differently. Like use something other than a box cutter to cut out an opening for the front panel:

Picture Frame Build

A box cutter can cut through wood, as it turns out. It just takes a really, really long time.

There is one small problem with having a wall-mounted computer that I didn’t consider before I put it up, though. And that’s the fact that my cat is convinced the computer fan and the wires were intended to be fascinating new toys for him to play with.

Picture Frame Cat

Maybe I’ll get some pigeon spikes for the top of my desk, that should fix the issue. Otherwise I’m pretty happy with it, as a prototype. There’s even room left over on the board for a new graphics card if I want to upgrade later.

-Susan

How EEOC v. Arabian American Oil Co. Invented the Modern Presumption Against Extraterritoriality

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The presumption against extraterritoriality (“PAE”), like all canons of construction, is a shorthand rule of interpretation used by judges to determine how a statute should be applied. Under the PAE, where there exists ambiguity as to the geographical scope of a statute, the court is required to limit the statute’s application to acts which occur within the territorial limits of the United States. But the PAE, as originally construed in EEOC v. Arabian American Oil Co. (1991) (“Aramco”), and as elaborated upon in Morrison v. National Australia Bank Ltd. (2010) and, more recently, in Kiobel v. Royal Dutch Petroleum (2013), is of a relatively modern vintage for a judicial canon, as it did not exist in its current form until the second half of the 20th century. Prior to the 1950s, the PAE, as it is understood today, did not exist. The modern PAE is instead a conflation of two older canons of construction, and although both those canons are often described as ‘presumptions against extraterritoriality,’ neither canon functioned in the manner that the PAE does today.

These two prior canons, although related both to each other and the modern PAE, were used by the courts two answer two separate questions of statutory construction, and did not typically overlap in their application. The first of these canons, which for purposes of this post has been dubbed the presumption against absurdities (“PAA”), was a presumption that a statute does not provide for extraterritorial application when doing so or when such an interpretation would necessarily imply that the court possesses an unflattering opinion of Congress’ competence. The second canon, which will be referred to here as the presumption against universality (“PAU”), provided that when a statute uses words such as “any,” or “all,” or “every,” those words would not be presumed to have been intended literally when the statute’s context shows that Congress used those words with a more limited definition in mind.

The Presumption Against Absurdities

The PAA, as an offspring of the Charming Betsy Canon, was based in part on the assumed conformity between U.S. law and international law, and was used when a statute could be interpreted in a manner that would place it beyond Congress’ actual authority to enact, either under international law or domestic law. Under the PAA, courts presumed that Congress had a reasonable intent, rather than an unreasonable one, when enacting legislation — or, in other words, that courts should refrain from interpreting statutes in a manner which would make Congress look like a bunch of idiots. As it was well understood to 19th century jurists “that the legislation of every country is territorial [ and] that beyond its own territory, [a state's legislation] can only affect its own subjects or citizens,” Rose v. Himely (1808), statutes were not to be construed in a way that would extend their effect beyond this permissible realm. As such, courts applying the PAA would not interpret a statute to cover extraterritorial conduct when doing so would necessarily have unflattering implications about the perceived competence of the legislative branch.

The roots of the PAA can be seen in U.S. v. Palmer (1818), in which the Court considered a law proscribing certain acts committed by “any seaman.” The Court concluded that “it cannot be supposed, that the legislature intended to punish a seaman, on board a ship sailing under a foreign flag, under the jurisdiction of a foreign government[.]” The Court’s reasoning was that it “would be difficult to believe” that Congress could have actually intended something so foolish, and therefore an interpretation that makes Congress look less ignorant should be presumed. This was not a presumption against extraterritoriality, however, because the statute’s extraterritorial effect was not in question. The Court needed a way to interpret “any seamen” to apply to U.S. seamen that were outside of the U.S., and not to alien seamen that were outside of the U.S., and it did do by assuming that a literal interpretation of a statute cannot be correct when a less literal construction would not make Congress look like a bunch of rubes.

Following Palmer, the PAA would be invoked by the courts many times over the course of the 19th and 20th centuries, both to find that an extraterritorial effect was not warranted because it conflicted with international law, and also to find that extraterritorial effect was warranted where it would not conflict with international law. See The Apollon (1824) (“[D]oes it follow that the power to arrest her was meant to be given, after she had passed into the exclusive territory of a foreign nation? We think not. It would be monstrous to suppose that our revenue officers were authorized to enter into foreign ports and territories, for the purpose of seizing vessels which had offended against our laws. It cannot be presumed that Congress would voluntarily justify such a clear violation of the laws of nations. The arrest of the offending vessel must, therefore, be restrained to places where our jurisdiction is complete, to our own waters, or to the ocean, the common highway of all nations.”); Toland v. Sprague, 37 US 300 (1838) (“[I]t is easy to perceive why the restriction in regard to the process was confined to inhabitants of the United States. Plainly, because it would not have been necessary or proper to apply the restriction to those whom the legislature did not contemplate, as being within the reach of the process of the courts, either with or without restrictions.”); United States v. Coombs (1838) (“There is, then, no reason, founded in the language or policy of the clause, to insert a restriction and locality which have not been expressed by the legislature. On the contrary, upon general principles of interpretation, where the words are general, the Court are not at liberty to insert limitations not called for by the sense, or the objects, or the mischiefs of the enactment.”); Waring v. Clarke (1847) (“There is no escape from this result, unless it is to be implied that the amendments were proposed by persons careless or ignorant of the difference in the mode of trial of suits at common law and in admiralty”); Patterson v. Bark Eudora (1903) (holding that “[a]n act to amend the laws relating to American seamen” also applied to foreign seamen; as Congress in this instance legitimately had the power under international law to impose this statute, to read the statute so as to exclude them would be improper, and especially so where excluding foreign seamen would gravely undermine the congressional interests underlying the statute); American Banana v. United Fruit Co. (1909) (“In the case of the present statute the improbability of the United States attempting to make acts done in Panama or Costa Rica criminal is obvious[.]“); U.S. v. Freeman (1915) (“And yet all will concede that Congress did not intend to do anything so obviously futile as to denounce as criminal an act wholly done in a foreign country, such as is the delivery to the carrier where the shipment is from a foreign country into a State.”); Sandberg v. McDonald (1918) (“Congress certainly did not intend to punish criminally acts done within a foreign jurisdiction; a purpose so wholly futile is not to be attributed to Congress.”); United States v. Bowman (1922) (holding that an extraterritorial effect should be presumed where there was no conflict with external laws, and where the purpose of the law would plainly be served by applying extraterritorially: “It would hardly be reasonable to hold that if any one, certainly if a citizen of the United States, were to steal or embezzle such property which may properly and lawfully be in the custody of army or naval officers either in foreign countries, in foreign ports or on the high seas, it would not be in such places an offense which Congress intended to punish by this section.”); and Branch v. FTC (7th Cir. 1944) (holding that American Banana did not prevent extraterritorial application of the statute in question, because “[t]he exercise by the United States of its sovereign control over its commerce and the acts of its resident citizens therein is no invasion of the sovereignty of any other country or any attempt to act beyond the territorial jurisdiction of the United States.”).

Often, American Banana is wrongfully identified as the iconic modern case that established the presumption against extraterritoriality, based on its pronouncement that “[a]ll legislation is prima facie territorial.” This is a misreading of that case, however, as American Banana did not intend — or even contemplate — the PAE, as it was applied in Morrison or Kiobel. The statement from American Banana, in context, was as follows:

The foregoing considerations would lead in case of doubt to a construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power. “All legislation is prima facie territorial.” Ex parte Blain, In re Sawers, 12 Ch. Div. 522, 528; State v. Carter, 27 N.J. (3 Dutcher) 499; People v. Merrill, 2 Parker, Crim. Rep. 590, 596

Examining the Court’s citations clarify that American Banana was not a presumption against extraterritoriality, but a presumption against absurd applications of the law. The two American cases the Court cites to are both concerned with inter-state applications of domestic criminal law. See State v. Carter (holding that an indictment setting forth a felonious assault and battery in New York, in which the victim then came into New Jersey and died from the assault’s effects there, could not result in a criminal charge under New Jersey law); and People v. Merrill (1855) (“[t]he penal acts of one state can have no operation in another state.”).

And American Banana’s most famous statement, “[a]ll legislation is prima facie territorial,” was adopted from the British case of Ex parte Blain [1879]. The full quotation from that case was:

The governing principle is, that all legislation is prima facie territorial, that is to say, that the legislation of any country binds its own subjects and the subjects of other countries who, for the time, bring themselves within the allegiance of the legislating power.

By “territorial,” Ex parte Blain was not referring literally to a geographical limitation, but to the limitations on a nation’s sovereignty. This is nothing more than a restatement of U.S. case law on that same subject, as held by Rose v. Himely (1808):

It is conceded that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens.

The PAA is based on this traditional understanding of the limitations on Congress’ prescriptive jurisdiction, which allows courts to assume that Congress had not contemplated exceeding these boundaries, even when a statute could be fairly read to extend beyond this permissible scope. The PAA, unlike the PAU, is therefore concerned with the actual limits of the U.S.’s sovereignty under international law, and as such, the PAA only arises when a proposed interpretation of a statute would in fact place the statute in conflict with either the laws of foreign states or the law of nations. The PAA does not apply to extraterritorial legislation which is not at risk of causing such conflicts.

The Presumption Against Universality

In contrast to the presumption against absurdities, the presumption against universality has little to no relation to international law, and it has no relation at all to the existence of any limitations on congressional power. Its primary use was as a judicial mechanism for repairing the imprecise edicts of a slightly sloppy legislative branch: in the language of Congress, “all things” does not mean “all things in the universe,” but rather “all things we meant to refer to in this law.” As such, under the PAU, when a statute uses a universal term, courts are not obligated to read into the statute a universal effect.

By applying the PAU, courts were thus able to free themselves from literal interpretations of vaguely worded statutes. When the legislature had included a universally inclusive term, but it seemed most probable that that no universal inclusion was intended, “all” and “every” were read instead as “all the subjects contemplated by this statute,” and “every act that is intended to be regulated by this section.” Unsurprisingly, then, the PAU often (but not exclusively) arose in cases concerning the proposed global application of a law, when all surrounding circumstances would suggest that only local regulation had been intended. See Cohens v. Virginia (1821) (“Congress must have considered itself as delegating to this corporate body powers for these objects, and for these objects solely. In delegating these powers, therefore, it seems reasonable to suppose that the mind of the legislature was directed to the City alone, to the action of the being they were creating within the City, and not to any extra-territorial operations. In describing the powers of such a being, no words of limitation need be used. They are limited by the subject.”); Brown v. Duchesne (1857) (“The general words used in the clause of the patent laws granting the exclusive right to the patentee to use the improvement, taken by themselves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode of expounding a statute has never been adopted by any enlightened tribunal — because it is evident that in many cases it would defeat the object which the Legislature intended to accomplish.”; “[T]hese acts of Congress do not, and were not intended to, operate beyond the limits of the United States; and as the patentee’s right of property and exclusive use is derived from them, they cannot extend beyond the limits to which the law itself is confined. And the use of it outside of the jurisdiction of the United States is not an infringement of his rights, and he has no claim to any compensation for the profit or advantage the party may derive from it.”); Ellis v. United States (1907) (“Without further elaboration of details we are of opinion that the persons employed by the two defendant companies were not laborers or mechanics and were not employed upon any of the public works of the United States within the meaning of the act. As in other cases where a broad distinction is admitted, it ultimately becomes necessary to draw a line, and the determination of the precise place of that line in nice cases always seems somewhat technical, but still the line must be drawn.”); N.Y. Cent. R.R. Co. v. Chisholm (1925) (“It is unnecessary for us to consider the power of Congress to impose civil liability upon citizens of the United States for torts committed within the territory of another nation. The present case presents nothing beyond a question of construction.”); Blackmer v. United States (1932) (“While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power.”); Foley Bros. v. Filardo (1949) (“The question before us is not the power of Congress to extend the Eight Hour Law to work performed in foreign countries. Petitioners concede that such power exists. The question is rather whether Congress intended to make the law applicable to such work.”).

The modern restatement of the PAU was most plainly set forth in Foley Bros. v. Filardo. There, in interpreting the reach of a statute that used the phrased “every contract,” the Court held that “every” could be understood figuratively, rather than literally. In doing so, it applied “canon of construction” that permit the court to make inferences “whereby unexpressed congressional intent may be ascertained.” Foley Bros. v. Filardo (1949) (citing Blackmer v. United States (1932)). This allowed the Court to avoid reading the statute as it was actually written:

Nothing in the legislative history supports the conclusion of respondent and the court below that “every contract” must of necessity, by virtue of the broadness of the language, include contracts for work to be performed in foreign countries.

And, importantly, the Court’s holding in Foley Bros. regarding this ‘canon of construction’ was not based on prior caselaw which had excluded the extraterritorial reach of any statutes. Instead, the Court cited to U.S. v. Bowman (“The necessary locus, when not specially defined, depends upon the purpose of Congress”) and Blackmer v. U.S. (“By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country.”), and contrasted its holding in Foley Bros. with a prior cases in which, despite any explicit statement of extraterritoriality in the statutes in question, the Court had found the existence of an extraterritorial effect, where an extraterritorial effect appeared consistent with Congress’ purpose in enacting the statute. See Vermilya-Brown Co. v. Connell (1948) (“We think these facts indicate an intention on the part of Congress in its use of the word ‘possession’ to have the Act apply to employer-employee relationships on foreign territory under lease for bases. Such a construction seems to us to carry out the remedial enactment in accord with the purpose of Congress.”).

Unlike the PAA, the PAU is unconcerned with whether or not Congress had the authority under international law to enact the statute being considered. And, unlike the PAE, the PAU did not provide for a blanket preference that statutes are only to be applied territorially, nor did it provide that extraterritorial effects can only exist when Congress has won a complicated game of “Mother May I” in the drafting of its enactments. Instead, the canon’s purpose and effect was much more limited: when a statute contains words of a universal scope, the statute may, when appropriate, be interpreted to have a more limited scope than what is literally provided for.

The Invention of the Presumption Against Extraterritoriality

The modern PAE was officially recognized — if not invented — by the Court’s decision in Aramco. It was in Aramco that the new, more expansive canon of construction was announced, and given the name of the “presumption against extraterritoriality” by the Court. In doing so, the Court eliminated the implicit, but long-recognized, distinctions between the PAU and PAA. The new PAE included elements of both the PAU and the PAA, but was more extensive in its application, and more confused about the justification for its existence.

Although Aramco was not the very first case to wrongfully conflate the PAU and PAA (Benz v. Compania Naviera Hidalgo, S.A. (1957) had as well, in a more limited fashion), it was the first case to do so explicitly. The Court’s method of statutory construction, in interpreting Title VII of the Civil Rights Act, invoked PAA and the PAU simultaneously, while erroneously claiming that the two canons were one and the same:

It is a longstanding principle of American law “that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Foley Bros., 336 U. S., at 285. This “canon of construction … is a valid approach whereby unexpressed congressional intent may be ascertained.” Ibid. It serves to protect against unintended clashes between our laws and those of other nations which could result in international discord. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 20-22 (1963).

Contrary to the Court’s blithe assertion in Aramco, however, the “canon of construction” referred to in Foley Bros. did not “serve[] to protect against unintended clashes between our laws and those of other nations,” as was stated in McCulloch. The decision in Foley Bros. had been based on the PAU, and, relying on the previous decision in Blackmer, held that its decision was “one of construction, not of legislative power.” In contrast, McCulloch was based on the PAA; there, the Court had based its decision directly on Charming Betsy, holding that it could “find no basis for a construction which would exert United States jurisdiction over and apply its laws” in circumstances contrary to the holdings of the State Department, Congress, and international law.

But the conflation of the two lines of statutory construction stuck, and, post-Aramco, the PAU and the PAA were treated as one and the same. And, although the PAU and PAA had both been canons of limited scope, applying only to statutes which raised the specific problems of statutory construction that the canons were concerned with, Aramco’s PAE applies to all statutes without exception. To compound matters, Aramco also kicked off the invention of the previously unknown ‘clear indication’ rule. As a result, the PAE, as it is understood today, is as often used as a means of judicial constraint against the legislative branch as it used as a means of ascertaining congressional intent.

-Susan

Edmund Randolph Also Disagrees With the Supreme Court’s Decision in Kiobel

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Oliver Ellsworth, as the primary drafter of the Judiciary Act of 1789, tends to get the lion’s share of the credit for the enactment of the Alien Tort Statute. Often overlooked in the history of the ATS, however, is the role played by Edmund Randolph, the first Attorney General for the United States.

Randolph was part of the congressional committee that drafted the original “recommendation to the states to enact laws for punishing infractions of the laws of nations,” in November 1781, which is frequently cited as a precursor to the ATS.
That resolution also contained a nascent version of the ATS’ grant of civil jurisdiction, providing “[t]hat it be farther recommended to authorise suits to be instituted for damages by the party injured” in the event of such a breach. During the Constitutional Convention, Randolph’s contributions demonstrated his continuing interest in the purposes served by the ATS. Randolph repeatedly criticized the failure of the Articles of Confederation to restrain states from engaging in “acts against a foreign power contrary to the laws of nations,” and argued that the federal government should have the power to redress violations of neutrality that might drag the U.S. into war. He also kicked off Article III’s inclusion of the Constitution, helped introduce the “to define … offences against the laws of nations” language in Article II, and advocated for the federal judiciary’s power over “questions which involve the national peace and harmony.”

He also tried to re-write the Judiciary Act of 1789, although he failed at that. But Washington appointed him as the United States’ first Attorney General, and in that capacity, he affirmed the extraterritorial effect of the ATS. In a memorandum provided to Thomas Jefferson regarding the slave abductions in Florida and St. Domingo, Randolph confirmed that although no criminal jurisdiction would extend to those acts, civil jurisdiction was plainly to be had in federal courts, where an alien brought a suit seeking damages for the Georgians’ violation of international law:

Neither of the cases is cognizable in the U.S. criminaliter; because they arose within the local jurisdiction of Florida and St. Domingo. Generally speaking, Incendiaries, poisoners, and other very high offenders may be demanded by the sovereign from whose territory they fled; and ought to be delivered up, according to the law of nations. But no such power exists in the U.S., by which such a surrender can be made.

Civiliter, however, damages may be recovered in the courts of the U.S. under the jurisdiction established by the judicial law if an alien be a party; and the state courts, if both [plaintiff] and [defenant] be citizens.

The federal judiciary has also cognizance of offences against the law of nations, because that law is attached to the U.S. from the nature of the subject, without explicit adoption of it; and because offences cognizable under the authority of the U.S. are clearly subjected by the judicial law to the circuit court. This Mr. J[efferson] seems to doubt, and is therefore referred to the 11th section [of the Judiciary Act of 1789].

It is presumed that congress ought not [specially?] to provide, (considering the circumstances of our country) for the surrender of the malefactors sheltered in the U.S. Nor can their definition be necessary; unless it be to define affirmatively those acts which perhaps may not be absolutely offences against the laws of nations yet are injurious to our harmony with foreign nations, if any such there be.

December 5, 1792

Randolph’s memoranda does no more than to restate the then-existing understanding of extraterritorial jurisdiction. There was a firm divide between the extraterritorial reach of criminal jurisdiction — which goes only to citizens on the high seas — and the extraterritorial reach of civil jurisdiction — which knew no such limitation. Although a U.S. citizen could not sue a U.S. citizen in federal court for an extraterritorial violation of international law, that was due to the lack of diversity jurisdiction, not because of a lack of extraterritorial effect. And, even if there was no federal jurisdiction, a U.S. citizen could still bring his suit in a state court, so long as process could be had on the defendant. But where an alien sued for damages, in a civil suit, the ATS provided for that case to be brought in a federal court — and, to Randolph, as well as Jefferson, the extraterritorial reach of that cause of action was obvious and uncontroversial.

In 1792, the United States lacked the ability to proscribe crimes committed by its citizens within the territories of foreign sovereigns, and that was a source of some contention at the time. The Crimes Act of 1790 did proscribe some offences against international law, but only where committed within the jurisdiction of the United States. But to the founding fathers, the limits of a nation’s prescriptive jurisdiction with regard to criminal offences had little or no relation to a nation’s ability to provide for a cause of action, civiliter, for an extraterritorial tort. That was taken as a given. And, in light of the United States’ inability to provide a criminal remedy for extraterritorial violations of international, its ability to provide for a civil remedy was all the more important.

-Susan

The Extraterritorial Effect of Respublica v. De Longchamps

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The Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum held that the presumption against extraterritoriality applies to common law causes of action under the ATS, and that there is no evidence the First Congress had intended the ATS to confer jurisdiction over extraterritorial torts. The Court’s conclusion was based, in part, on the claim that the ATS had been specifically enacted in response to two “domestic” breaches of international law: that of the Marbois-Longchamps Affair and the arrest of a servant in Ambassador Van Berckel’s household:

Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois — the Secretary of the French Legion — in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v. De Longschamps [sic], 1 Dall. 111 (O. T. Phila. 1784)

Because there are two known domestic incidents that contributed to the ATS’s enactment, the Court held, the First Congress must have had in mind only domestic causes of action under the ATS:

These prominent contemporary examples — immediately before and after passage of the ATS — provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.

As an initial matter, it is questionable whether these two incidents can be said to have encompassed the totality of the First Congress’ concerns with infractions of the law of nations. Even accepting that premise, however, the Court’s conclusion is misguided for another reason: the case of Respublica v. De Longchamps, as its contemporaries understood it, was a case involving extraterritorial application of the law.

Although Kiobel was correct that the Longchamps case involved “a French adventurer verbally and physically assaulted [Secretary] Marbois,” the Court’s summary description of the case conflates the two separate charges that were brought against the defendant. It was only the verbal assault that fell afoul of the laws of nation, as the charge for the physical assault was not under international law, but under municipal law:

Longchamps was initially charged with two counts: (1) “unlawfully and violently threatening and menacing bodily harm and violence to the person of the honorable Francis-Barbe De Marbois, Secretary to the Legation from France, and Consul General of France to the United States of America, in the mansion-house of the Minister Plenipotentiary of France,” and (2) “for an Assault and Battery committed upon the said Secretary and Consul, in a public street in the City of Philadelphia.”

One of the reasons that the Marbois Affair caused so much diplomatic unease is due to the fact that Longchamps’ violation of the law of nations occurred not on the street, as Longchamps’ assault had, but in the hotel of the minister plenipotentiary of France. There was a great deal of uncertainty among both members of the Federal Congress and the government of Pennsylvania as to whether such an offense was cognizable by a Pennsylvanian court.

In contrast to the international law violation, the charge against Longchamps for assault and battery was never legally in doubt. Although factually there is some disagreement as to whether or not Marbois was the true aggressor, as a legal matter, the offence of assault and battery on a public street was legally straight forward, as it was unquestionably a crime under the municipal law.

But the assault and battery on Marbois wasn’t the source of the diplomatic strife– it wasn’t the offense to Marbois that caused the Framers’ a foreign relations headache, but rather the offense to the Chevalier de la Luzerne, the French Ambassador. Two days prior to the events resulting in the assault and battery charge, Longchamps had gone into the French minister plenipotentiary’s house and gotten into a verbal altercation with Marbois. The insulting language Longchamps used was, apparently, quite scandalous, or at least it was by French standards. The specific insult Longchamps was said to have made to Secretary Marbois was, “I will dishonor you, you naughty rascal!”

And it was this insult — or rather, the location where it took place — that was the real point of contention. Such an act was deemed a violation of the laws of nations, and French minister Luzerne wanted recompense. As a result of the insult to the French nation’s honor, Luzerne — and also his friend, Van Berckel, the Dutch minister, who would later be involved in the 1787 event also cited by Kiobel – threatened to remove their respective legations from Philadelphia if the U.S. failed to take appropriate action against Longchamps under the laws of nations.

In fact, at Longchamps’ trial in July of 1784, it initially seemed that only the assault charge under municipal law would stand, as the jury originally found Longchamps to be guilty of only that offense. After a little bit of coaxing from the judges, however, the jury finally got it right, and convicted him of violating both the law of Pennsylvania and the law of nations:

The Jury, at first, found the defendant guilty of the Assault only; but, the Court desiring them to re-consider the matter, they returned with a verdict against him on both Counts.

Longchamps’ defense attorneys contested the validity of the count for violation of the law of nations, arguing that only the municipal law of Pennsylvania could apply, as that was where the offense was committed. This claim was rejected by the Supreme Court of Pennsylvania, and at Longchamps’ sentencing, it was held that the law of nations — and not the municipal law of Pennsylvania — was to apply to the offense, because it had occurred exterritorially to the laws of Pennsylvania:

It must be determined on the principles of the laws of nations, which form a part of the municipal law of Pennsylvania; and, if the offences charged in the indictment have been committed, there can be no doubt, that those laws have been violated. The words used in the Minister’s house, (which is to be considered as a Foreign Domicil, where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend) may be compared to the same words applied to the Judges, in a Court of Justice, where they sit in representation of the majesty of the People, of Pennsylvania.

The Pennsylvania Supreme Court’s decision was based on then-existing conceptions of the inviolability of the premises of a foreign minister. Although the doctrine would become extinguished shortly thereafter, in the 18th century the concept of the Franchise de l’hôtel was still in effect. Under this doctrine, a foreign minister’s dwelling, or domicile, was conceived to be “extra-territorial” to the nation where it sat. The laws of the host state did not enter or apply to the minister’s domicile, and the host sovereign could not exercise jurisdiction — civil or criminal — over acts which occurred within it, as the foreign minister’s hotel was considered to be under the jurisdiction and sovereignty of his home state.

Unsurprisingly, this lead to a great deal of abuse by ambassadors, who used their privileged status to grow rich by shielding criminals and smugglers of all types. In fact, in the 16th and 17th centuries, prior to the more limited Franchise de l’hôtel, the law of nations recognized the more expansive Franchise du quartier – the right of the ambassador to claim privileged status over his entire city quarter. Under the Franchise du quartier, Ambassadors could, from their residences,  grant asylum, enter into contracts, or try and execute servants for criminal violations, all under the law of the sovereign nation to which the embassy belonged.

By the late 18th century, the extent of a foreign minister’s exterritoriality had diminished from its earlier peak. The modern view — which is that foreign embassies are entitled to an extensive list of privileges and immunities, but are nevertheless within the territorial sovereignty of the nation in which they are located — was not yet fully established. And at the time of Longchamps’ trial, the Pennsylvanian authorities, the French legation, and the Federal government were all very much aware of the exterritoriality of Longchamps’ crime. In requesting advice from Congress on how to proceed against Longchamps, the Supreme Executive Counsel of Pennsylvania specified that the offense had occurred “in the hotel of the Minister of France,” finding significant import in the location of the infraction. Luzerne also made much of the location of the insult, and used that to justify his claim of entitlement to exercise jurisdiction over the offense, and his request Longchamps ought be repatriated to France so that he could be prosecuted there.

Although France’s extradition request was denied, Chief Justice McKean ultimately agreed with Pennsylvania’s Attorney General, William Bradford. Bradford argued, on behalf of the prosecution, that Longchamps’ insults were an offense against the law of nations, and that Pennsylvania’s law did not apply to that offense, as it had occurred “where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend.” The Supreme Court of Pennsylvania apparently accepted this argument, and also fully adopted Bradford’s argument that “the law of nations, which makes part of the common law of all nations, requires no particular forms of legal proceedings, but always adopts those of the municipal laws of the different countries of where it is in force.” The court accordingly found that the charge against Longchamps under international law could be sustained in Pennsylvania’s state courts.

Bradford, as the Attorney General for the United States, would also later reaffirm the view that a  foreign minister’s dwelling-house was extraterritorial to the jurisdiction of the state where it was located. In his Opinion of June 24, 1794, at 1 Op. 47, Bradford noted that, unlike an ambassador’s dwelling, a foreign warship in the United States’ territorial waters was subject to that state’s jurisdiction: “[t]he commander of a foreign ship-of-war … cannot claim that extraterritoriality which is annexed to a foreign minister and to his domicil; but is conceived to be fully within the reach of, and amenable to, the usual jurisdiction of the State where he happens to be.” This decision echoes the language used in Respublica v. Longchamps, and suggests that Supreme Court in Kiobel was mistaken in deeming that particular case to have “involved conduct within the Union.”

-Susan

Doritos Locos Drama: Did Taco Bell Steal the Idea from a SuperMax Prisoner?

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I’ve already blogged about why it might’ve taken Taco Bell so long to develop the Cool Ranch Doritos Locos Taco. But if one federal SuperMax prisoner is telling the truth, there’s a much more interesting story behind the cheese-dusted receptacles of deliciousness.

In a complaint filed in the U.S. District Court for the Northern District of Texas, prisoner Gary Anthony Cole alleges that Taco Bell stole the idea for Doritos tacos from him. In fact, Cole allegs that PepsiCo, Frito-Lay, Yum! Brands, the Federal Bureau of Prisons, Congress, Satan, and others have all conspired to steal his original brilliant idea. Cole evidently sent a letter to his attorney a few years ago that included several great inventions. Among them: “Taco Shells of All Flavors (Made of Doritos).” Cole surmises that Taco Bell stole his idea from the mail and profited handsomely.

Of course, this complaint only raises the question of why nobody stole any of Cole’s other great ideas, including “Divas and Ballers Hairfood” and “Wood Binder.” But I digress.

What’s interesting about Cole’s complaint is that it relies upon intellectual property rights. Food and cuisine protection is something of a no man’s land within the IP realm. Recipes, menus, and the like usually aren’t considered protectable. See, e.g., Emily Cunningham, Protecting Cuisine Under the Rubric of Intellectual Property Law: Should the Law Play a Bigger Role in the Kitchen?, 9 J. High. Tech. L. 21, 22 (2009); see also Vasquez v. Ybarra, 150 F. Supp. 2d 1157, 1166 (D. Kan. 2001) (“After all, a taco is a taco.”). And although some scholars have argued that trade dress could prevent food theft, that doesn’t seem to be an idea that many courts have embraced. But see Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) (stating, in landmark taco-related decision, that Mexican restaurant could assert trade dress claim against another Mexican restaurant).  If I were advising Bell–no doubt our generation’s Nikola Tesla–I would tell him that he should instead consider a standard misappropriation claim.  See, e.g., Myung Ga, Inc. v. Myung Ga of Md., Inc., No. DKC 10-3464, slip op. (D. Md. Aug. 8, 2011) (finding recipe for stir-fried squid might amount to trade secret).

I wonder too whether Cole knows that he’s going up against a plaintiff who’s sensitive to these kinds of of “idea theft” cases. In Wrench LLC v. Taco Bell Corp., Taco Bell wrestled with a claim that it misappropriated the idea for the “Yo Quiero Taco Bell” dog. A Michigan jury found that Taco Bell did take the idea and owed the original creators $30 million. That figure went up to $42 million with interest. If Cole’s claim had any legal merit whatsoever–and joking aside, it doesn’t–then Taco Bell might have been quick to settle after its $42 million lesson in defeat.

In any event, I’ll be monitoring this case closely for any additional Doritos Locos developments. If this case were to make it to discovery (here again, it won’t), I imagine we’d see some interesting evidence on how the snack-food-cum-tortilla came to be.

-Michael

P.S. This case includes perhaps the best BigLaw-authored letter ever. Notable lines: “By now you should have received the taco documents. … Do not ‘put a knife’ to the staff.”

P.P.S. If you’re interested in taco litigation, then you might also enjoy Panera v. Qdoba. In that case, a Massachusetts court determined that tacos–in addition to burritos and quesadillas–do not qualify as sandwiches. Judge Richard Posner later wrote an essay discussing a similar case and arguing that a taco might be a sandwich after all.

[H/T Legal Blog Watch]

Thomas Jefferson Disagrees with the Supreme Court’s Decision in Kiobel

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In 1792, Thomas Jefferson, as the first Secretary of State, made note of complaints that had been lodged against the U.S. by both Spain and France. In different incidents, citizens of Georgia had breached international law by trespassing into Florida (then a part of Spain) and into the territorial waters of Santo Domingo for the purpose of recapturing and kidnapping slaves. In examining the remedies that might be available to the United States to prevent this situation from reoccurring in the future, Jefferson affirmed the Alien Tort Statute’s extraterritorial reach, taking it as obvious that the statute conferred jurisdiction over acts that took place in a foreign sovereign’s territory:

XXX. — Opinion relative to a case of recapture, by citizens of the United States, of slaves escaped into Florida, and of an American captain enticing French slaves from St. Domingo.

December 3, 1792.

Complaint has been made by the Representatives of Spain that certain individuals of Georgia entered the State of Florida, and without any application to the Government, seized and carried into Georgia, certain persons, whom they claimed to be their slaves. This aggression was thought the more of, as there exists a convention between that government and the United States against receiving fugitive slaves. The minister of France has complained that the master of an American vessel, while lying within a harbor of St. Domingo, having enticed some negroes on board his vessel, under pretext of employment, bought them off, and sold them in Georgia as slaves.

1. Has the general government cognizance of these offences? 2. If it has, is any law already provided for trying and punishing them?

1. The Constitution says .. that Congress shall have power to “define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” These offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st, in nature; 2d, usage; 3d, convention? So much may be said in the affirmative, that the legislators ought to send the case before the judiciary for discussion; and the rather, when it is considered that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals.

2. Have the legislators sent this question before the Courts by any law already provided? The act of 1789, chapter 20, section 9, says the district courts shall have cognizance concur rent with the courts of the several States, or the circuit courts, of all causes, where an alien sues for a tort only, in violation of the law of nations: but what if there be no alien whose interest is such as to support an action for the tort? — which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired.

The same act, section 13, says, the “Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations.” — Still this is not the case, no ambassador, &c., being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.

[A note added by Mr. Jefferson at a later period. ]

On further examination it does appear that the 11th section of the judiciary act above cited gives to the circuit courts exclusively, cognizance of all crimes and offences cognizable under the authority of the United States, and not otherwise provided for. This removes the difficulty, however, but one step further; — for questions then arise, 1st. What is the peculiar character of the offence in question; to wit, treason, felony, misdemeanor, or trespass? 2d. What is its specific punishment — capital or what? 3d. Whence is the venue to come?

As these offenses had taken place in the territory of other sovereigns — and not upon the high seas, which is the geographical extent of Congress’ authority to prescribe “piracies and felonies” — Jefferson concluded that the Constitutional authority for acting against the Georgians’ incursions came from the “offences against the law of nations” clause. Jefferson then considered whether Congress had previously, pursuant to this authority, provided for any laws that might reach the challenged conduct and, in examining the section now known as the Alien Tort Statute, finds that Congress had. Unfortunately for Jefferson, the ATS would not protect the U.S.’s interest in this instance, leading him to  lament the apparent lack of federal jurisdiction for such a case to be heard before the federal courts: “what if there be no alien whose interest is such as to support an action for the tort?”

But Jefferson implicitly accepted that, under the ATS, an alien possessed an individual cause of action for an extraterritorial tort. The Attorney General at that time, Edmund Randolph, concurred with Jefferson that a civil claim could plainly exist over the slave abductors, even though the exercise of criminal jurisdiction under those circumstances was more questionable.

And although no plaintiff existed to have standing in the cases of the Florida and St. Domingo slave abductions — and thus no claim under the ATS was available — the permissibility of civil jurisdiction over the defendants was, to Jefferson, obvious. Constitutional authority to provide a cause of action over the offence was authorized under the “offences against the law of nations” clause; subject matter jurisdiction in the district courts was provided for by section 9 of the Judiciary Act of 1789; and personal jurisdiction was to be had over the defendants owing to both their presence in the state of Georgia and their status as U.S. citizens. No ‘presumption against extraterritoriality’ would have applied, under Jefferson’s understanding, because such a judicial construction would have directly undermined the congressional purpose underlying the ATS.

-Susan

Slate’s Article on O’Connor Misses the Mark … Or Does It?

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Over at Slate, Emily Bazelon seems to have an article criticizing Justice O’Connor for retiring from the Supreme Court too early. One would at least think that from the subtitle, which reads: “Retired Justice O’Connor regrets the Supreme Court’s lurch to the right. So why didn’t she stay and prevent it?” As it turns out, O’Connor had a perfectly good reason for leaving the Court, as she’s said before:

O’Connor, who is still physically and mentally fit, said it was her plan to follow the tradition of previous justices, who enjoy lifetime appointments, to work until they die or are virtually incapacitated.

“Most of them get ill and are really in bad shape, which I would’ve done at the end of the day myself, I suppose, except my husband was ill [with Alzheimer's] and I needed to take action there,” O’Connor said.

So, if Bazelon means to attack her for leaving, I think she’s out of line. O’Connor left to care for a sick loved one.

But interestingly, the text of the article itself doesn’t talk much about O’Connor’s choice to leave. Instead, the article focuses on Justice O’Connor’s more moderate statements since leaving the bench and asks why O’Connor didn’t employ such moderation while she was still on the bench. (And it dregs up some more bitching about Bush v. Gore.)

So I find the article most interesting because it might demonstrate how writers are occassionally held accountable for the sins of their editors. The editors, of course, are the ones who write the headlines. I suspect in this instance that Bazelon’s editor didn’t really understand the import of the article. Or perhaps the editor was looking for a provocative question to drive pageviews and comments.

But in any event, the answer to Slate’s question is easy: no, Justice O’Connor didn’t leave the Court too early.

-Michael