Archive for November, 2009

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Things That Made My Life Slightly Better Today: Complete* List of Law Review Abbreviations

November 20, 2009

Oftentimes while reading an article, I’ll try to find a source mentioned in a footnote, only to discover that whoever wrote the footnote has just completely invented a new citation format and is now directing me to a source that does not exist. G.W. I.L.R.? Eur.Jour.Int.L.? Seriously, people? The worst offenders, by far, are those from other academic fields, as when citing to a legal source they seem to be blissfully unaware that such a thing as standardization exists.

Which means I have to puzzle over their random list of letters and try to reverse engineer the scramble until I figure out what journal they were trying to cite to, and then go rummage around to look up the actual abbreviation.

Okay, sure, in most cases that will take all of thirty seconds. In the grand scheme of things, this is a life problem that ranks about a .2 on a 10 point scale. It didn’t used to be an actual problem, as I had a system that was pretty reliable, but now that I’m no longer a student and don’t have magical legal database access powers, it’s gone from “minor nuisance” to “actual source of irritation.” So after the thousandth time of trying to find a journal article based upon someone’s insane made up version of a law review abbreviation, I finally decided to compile a handy reference collection myself. Sloppy footnoters will never cause me research anguish again:

And, if all else fails, Cardiff Index to Legal Abbreviations and NYU Guide to Foreign and International Legal Citations. These are very bulky and not good for quickly looking up common publications, but if nothing else is working, these will totally do the job.

Finally, this site is plausibly useful, but I’ve never actually had an occasion on which I needed to use it: International Citation Manual.

-Susan

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The Texas Constitution: Authorizing Same Sex Domestic Partnerships and Prohibiting Opposite Sex Marriage Since 2005

November 19, 2009

Thanks to the efforts of a Texas candidate for Attorney General, a little constitutional tweak made four years ago is now back in the spotlight. The trouble is caused by a statewide referendum that voted in the following change:

SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

I’ve wondered before why the 434th amendment to the Texas constitution hasn’t received more attention. It’s a real life example of a common thought experiment: What if a law says one thing, but everyone — or at least 99% of everyone — understands it to mean something it does not actually say? What, then, is the law?

Well, the answer’s not clear, aside from the amendment pretty much being Buddy Nino’s worst nightmare.

Any judge that has a case come before them based upon the Texas marriage amendment is going to find themselves in between a rock and a hard place. There simply is not a correct answer. In reality, a judge almost certainly won’t find marriage to be unconstitutional in Texas — the political heat is simply too great, and too many serious legal problems would arise based upon suddenly every marriage in the state being dissolved. But if a judge finds marriages are not prohibited in Texas, she will be ignoring the text and replacing it with what “everyone knows it actually means.” That is some textbook judicial activism right there.

And no, the existence of section (a) describing what a marriage is does not save the amendment. It’s as if it read, “Someone can only be a lawyer in this state if they have been admitted by the state bar; however, this state shall not license or recognize a foreign license that would have the effect of making someone identical to a lawyer or would make them something similar to a lawyer.” The first section provides a definition; the second section prohibits the existence of the defined item.

Although the language of the amendment is obviously ridiculous and meaningless, it is also hilariously ineffective at what it purports to do, i.e., ban same sex domestic partnerships. If “marriage is only a union between a male and a female,” then a same sex pairing is certainly not identical or even similar to marriage, because fully half of the required conditions are not present.

Moreover, from the original legislative resolution,

“This state recognizes that through the designation of guardians, the appointment of agents, and the use of private contracts, persons may adequately and properly appoint guardians and arrange rights relating to hospital visitation, property, and the entitlement to proceeds of life insurance policies without the existence of any legal status identical or similar to marriage.”

So we know that, according to the Texas legislature, an arrangement that involves a sharing of resources, power of attorney, a kinshipesque right to visit in the hospital, and a right to receive someone’s life insurance benefits is not similar a marital union. You could argue it would become similar to marriage if these bundle of rights were granted through a single “domestic partnership contract,” but why should it matter whether the bundle of rights is achieved through one contract or two or three?

I am not being facetious here; I honestly cannot imagine what would have to exist before a union between people of the same sex, which is called something other than marriage, would be considered “similar to marriage.” Precisely what are the rights that create a “similar to marriage” status? Is it the right to file joint tax returns? Well that won’t work, because under DOMA no same-sex pairing can anyway. Is it the right to inherit property? No, the state already says that’s not marriage-like. Is it the right to hold a non-state sanctioned marriage ceremony, or to wear wedding bands? Nope, the state can’t ban couples from doing that. Is it the right to hold yourself out as married under the rules of your religion? Nope, they can’t ban that either.

So basically, without intervention via judicial activism, marriage is prohibited in Texas, no matter the gender pairings involved. Likewise, unless a judge engages in judicial activism to get around it, same sex domestic partnerships are adamantly not prohibited. Opposite sex domestic partnerships, however, may or may not be prohibited — that’s a closer question, and would depend upon what rights the partnerships provide and what the judge construes “similar to marriage” to mean.

-Susan

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Psalm 109:8 and Good Faith Biblical Interpretation

November 19, 2009

The latest popular religious-political brouhaha to erupt involves a new conservative slogan, which is being featured on bumper stickers, t-shirts, coffee mugs, and other items of internet kitsch. The slogan is, “Pray for Obama, Psalm 109:8.”

On the face of it, Psalm 109:8 does seem like an appropriate sentiment for a right-leaning Christian to pray for God to bring onto Obama: “Let his days be few; and let another take his office.”

But the slogan might be worth reexamining when taken with the rest of the text of Psalm 109:

6 Appoint an evil man to oppose him;
let an accuser stand at his right hand.

7 When he is tried, let him be found guilty,
and may his prayers condemn him.

8 May his days be few;
may another take his place of leadership.

9 May his children be fatherless
and his wife a widow.

10 May his children be wandering beggars;
may they be driven from their ruined homes.

11 May a creditor seize all he has;
may strangers plunder the fruits of his labor.

12 May no one extend kindness to him
or take pity on his fatherless children.

13 May his descendants be cut off,
their names blotted out from the next generation.

14 May the iniquity of his fathers be remembered before the LORD;
may the sin of his mother never be blotted out.

15 May their sins always remain before the LORD,
that he may cut off the memory of them from the earth.

Bible verses are often quoted in a way that obscures or sanitizes the meaning if taken in context, and the vast majority of the time the “true” meaning is adamantly not implied or suggested by whoever is using the quotation. However, while undoubtedly some people purchasing the Psalm 109 products do so with unawareness of the double meaning, I do not think all who advocate the slogan’s use do so in good faith.

People are defending the “Pray for Obama Psalm 109″ slogan even after being informed of the larger and more sinister context of the verse. Those in favor of the slogan argue that they don’t mean the slogan “like that,” so the shirts are merely expressing a benign sentiment. However, what this argument basically boils down to is that it is acceptable to deliberately spread about misinterpretations of the Bible and to obscure the true meaning of God’s word. Somehow, I don’t think that argument is entirely coherent with certain other Biblical passages.

At least one online company has announced it will no longer sell Psalm 109 shirts, although when I checked earlier, the shirt pictured in the image above was still available for purchase. Zazzle says:

With that in mind, it is only after great thought that we have determined that these products, in the context of the full text of Psalm 109, may be interpreted in such a way as to suggest physical harm to the President of the United States. In deference to the Office of the President of the United States, and in accordance with federal law prohibiting the making of threats against the physical wellbeing of the President of the United States, Zazzle has therefore determined that these products are in violation of the Zazzle User Agreement and not appropriate for inclusion in the Zazzle Marketplace. We have begun efforts to remove them from our website, and we will be vigilant to the publication of similar products moving forward.

-Susan

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Under Copyright Law’s Fedora: Paul Zukofsky’s Copyright Notice as Critical Commentary

November 19, 2009

Paul Zukofsky, the son of poets Louis and Celia Zukofsky, has published an amazing Copyright Notice, in which he threatens to bring down a storm of litigation on anyone who dares to quote his parents without paying him the required fee. Describing his letter as “an obvious ‘do not trespass’ sign,” he says:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of ‘fair use’. ‘Fair use’ is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

PZ may “expect [his] views to be respected,” but his expectations are not exactly the sort that are legally protected. Essentially, PZ is making a threat that either you do not use the work or pay him if you do, or else he will pursue you with vicious, expensive litigation that, while is unlikely to succeed on the merits, will bankrupt any grad student long before the merits could be reached.

This not an idle threat. Glancing around, I found a few examples of where scholarly commentary on Louis Zukofsky has been removed due to legally dubious copyright infringement claims made by PZ. He seems intent on making good on the threat contained in his Copyright Notice:

“In general, as a matter of principle, and for your own well-being, I urge you to not work on Louis Zukofsky, and prefer that you do not. Working on LZ will be far more trouble than it is worth.”

Despite P. Zukofsky’s assertions that his motivations are “almost purely economic,” and that he is merely protecting his financial interest when he “insist[s] on deriving income from that property,” I suspect money is not the true issue. First, it is quite obvious that the stance PZ is taking will lead to less income from the copyrights he now holds. By forbidding any substantive commentary on his parents, he is ensuring that their works will rush prematurely headlong into a grave of literary obscurity — as with no one talking about their poetry or discussing their works, there are no new potential fans to become intrigued enough to purchase a copy of the Zukofskys’ works for their own.

But second, and more importantly, the “Copyright Notice” is not at all some dry and dour admonishment, written in legalese, as you would expect with a true peremptory cease & desist notice, but rather it is a self-aware “irascible [and] recalcitrant” rant. It reveals too much about the author himself, such as his apparent daddy issues, (“I hardly give a damn what is said about my father (I am far more protective of my mother)”), to not have been intended as a form of literary speech in itself, separate from any legal warning it may also convey. This becomes most obvious in the letter’s following paragraph, in which PZ mocks the uselessness of grad students and their dissertations on poetry:

I can perhaps understand your misguided interest in literature, music, art, etc. I would be suspicious of your interest in Louis Zukofsky, but might eventually accept it. I can applaud your desire to obtain a job, any job, although why in your chosen so-called profession is quite beyond me; but one line you may not cross i.e. never never ever tell me that your work is to be valued by me because it promotes my father. Doing that will earn my life-long permanent enmity. Your self-interest(s) I may understand, perhaps even agree with; but beyond that, in the words of e.e.cummings quoting Olaf: “there is some s[hit] I will not eat”.

e.e.cummings is, of course, still under copyright, and by all indication PZ is not nearly so dense that he could have been oblivious to the irony of quoting another poet in a diatribe about how no one should ever quote the Zukofskys. The use of the copyrighted quotation was almost certainly a deliberate act by PZ. Moreover, Louis Zukofsky himself wrote many volumes of critical commentary– the “so-called profession” PZ refers to with scorn is his father’s own profession, and many of the copyrights that PZ is trying to protect are rights in poetry critiques. So I do not believe that PZ could have been less than fully aware that his actions are an abuse of copyright and contrary to his own father’s feelings on poetry; instead, PZ’s Copyright Notice is itself a critique of the scholarship scholarship written about the Zukofskys, albeit one unfortunately backed with the color of law.

Paul Zukofsky is brilliant and accomplished in his own right, and I actually cannot find it in me to condemn his instinct to protect and control the literary works of his parents, as well as their legacy. It is the asinine structure of our copyright laws that is to blame, for giving PZ the power to wield the American legal system against scholarship he dislikes, or to shut down any criticisms or homages of his parents that he disagrees with. Copyright’s only true purpose is to provide incentives for future creators — instead, perversely, under our laws today, copyright’s purpose has become to serve whatever whims the copyright holder might have, even if that whim is to have a poet’s work never be discussed again.

-Susan

p.s. If you want to at least listen to Zukofsky’s works, a bunch are available online here.

p.p.s.: Or read LZ’s Poetry/For My Son When He Can Read. The closing paragraph takes on a new meaning in light of Paul Zukofsky’s attempts to prevent others from finding new meaning in LZ’s own poetry:

“Writing this Paul, for a time when you can read, I do not presume that you will read ‘me.’ That ‘me’ will be lost today when he says good night on your third birthday, and not missed tomorrow when he says good morning as you begin your fourth year. It took all human time to nurse those greetings. And how else can the poet speak them but as a poet.”

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The International Law of Antarctic Whiskey of Historical Value

November 17, 2009

A New Zealand expedition is planning to drill for one hundred year old whiskey in Antarctica, from two crates left behind by the Nimrod Expedition in 1909.

The Nimrod Expedition, lead by Sir Ernest Shackleton, came within 97 miles of the South Pole before they gave up and came home. They’d originally brought with them 25 crates of McKinlay’s scotch, but two were found to have been left behind in the expedition’s Cape Royds base hut.

However, a century of ice and snow isn’t the only thing standing in the way of the whiskey’s recovery. International law may also pose a barrier, as the hut at Cape Royds has been designated an Antarctic Specially Protected Area (ASPA) under Annex V to the Protocol on Environmental Protection to the Antarctic Treaty. Art. 8(4) of the Annex requires that “Listed Historic Sites and Monuments shall not be damaged, removed or destroyed.” Although temporary removal of objects for conservation purposes is permitted, and taking samples of the whiskey for study would be permitted, the crates and most the whiskey are prohibited from being removed completely by any one party under current treaty law. Today, preservation of the hut is the responsibility of the New Zealand Antarctic Heritage Trust, hence their carrying out of the whiskey mission.

There are a couple sources of treaty requirements regarding Shackleton’s whiskey and other historical relics. Resolution 3 from ATCM XXXII incorporated the Guidelines on Preservation of Historic Areas, which states:

“To that end, Parties should notify the other Parties of the discovery, indicating what remains have been found, and where and when. The consequences of removing such remains should be duly considered. If items nonetheless were removed from Antarctica, they should be delivered to the appropriate authorities or public institutions in the home country of the discoverer, and remain available upon request for research purposes.”

Measure 5 of ATCM XXXII, “Revised Management Plan for ASPA 121 (Cape Royds),” is more specifially relevant to the McKinley whiskey, as it addresses the handling and conservation of artifacts from the Nimrod Expedition. The plan became effective in July, 2009. Section 7(vii) requires that:

“Material may be collected or removed from the Area only in accordance with a permit should be limited to the minimum necessary to meet scientific or management needs.”

“Any new artifacts observed should be notified to the appropriate national authority. Relocation or removal of artifacts for the purposes of preservation, protection or to re-establish historical accuracy is
allowable by permit.”

So while recovering a sample of whiskey with a syringe to take back for study would qualify as a “scientific need,” it or any other materials retrieved must remain in the hands of a public institution and be available to other nations for research purposes. Incidentally, I do not know exactly what “permits” are required or where they are obtained from, but I find it depressing to know that not even the remote icefields of Antarctica are free from the strictures of bureaucracy.

Finally, part of me suspects that the whiskey retrieval mission is less about getting a sample of historical whiskey and more about an awesome publicity campaign. Or possibly just part of an advertising war between whiskey makers — Jameson’s may dive into the sea during a storm to recover a barrel of their whiskey, but McKinlay’s can trump that by sending an expedition to Antarctica to retrieve Shackleton’s lost whiskey cache.

-Susan

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Big Brother’s Invisible Yellow Dots: Using Secret Printer Tracking Data in Civil Litigation

November 16, 2009

This is apparently very old news, but I’ve never heard of it before. U.S. laser printer manufactures have, in cooperation with the federal government, included special tracking dot systems with their printers, so that every page printed contains hard to see dot patterns encoding the serial number of the printer and the time and date that a given page was printed.

The dots’ minuscule size, covering less than one-thousandth of the page, along with their color combination of yellow on white, makes them invisible to the naked eye, Crean says. One way to determine if your color laser is applying this tracking process is to shine a blue LED light–say, from a keychain laser flashlight–on your page and use a magnifier.

The best website up about the tracking dots is over at the Electronic Frontier Foundation. The EFF has sent in a FOIA request for information on the program. So far, they say,

“[the] [d]ocuments we’ve begun to receive in response to our FOIA requests suggest that the government may have convinced all printer manufacturers to put some kind of tracking mechanism in every color laser printer.”

The EFF has discovered the key to the tracking dot code, as shown in the picture here. They reveal the printer serial number and the exact date — down to the minute — of when the document was printed.printerguide

The Secret Service seems to be the agency that convinced printer companies to include these dots patterns. An anti-counterfeiting agent has stated that, “The only time any information is gained from these documents is purely in [the case of] a criminal act,” but there are no statutes actually limiting their use in any way.

Printing companies, like Xerox, assist the government in using the dot patterns. In the course of an investigation, the Secret Service

“decodes the information contained in the dots only to investigate counterfeiting cases. Once it has the serial number of the printer, the agency can work with printer companies to find out where the printer was sold.”

However, counterfeit investigations are only the tip of the iceberg for potential uses of the tracking dot system.

The EFF, and most other sites with information on the dots, seem primarily concerned with privacy concerns regarding government abuse of the tracking data, which is certainly a valid issue. But the first thought I had was the potential value of tracking dot information for private parties, especially for use in civil litigation. I was hoping to find an example out there of a case where tracking dots were used as evidence to either establish when a document was printed or who did the printing, but I couldn’t turn one up. Still, this seems like it’d be such an insanely useful information bonanza that there’s not way it could have not been used in litigation at some point. I’m going to scout around some more this afternoon, and if I find any cases where they were used, I’ll put them up.

Off the top of my head… Potential cases where tracking dot data might be invaluable would be, for instance, contract cases where there are allegations additional pages have been substituted in the contract, or family law cases where maybe one party is alleging they have a threatening not sent by another party, or employment cases where an employee is alleged to have engaged in improper conduct at work where printing was involved. There are thousands of cases where it might come in handy.

On a final note, because this is LL2 and because in my world essentially every subject can and should be linked to international law, there may in fact be some international law implications here as well. According to the European Parliament,

To the extent that individuals may be identified through material printed or copied using certain equipment, such processing may give rise to the violation of fundamental human rights, namely the right to privacy and private life. It also might violate the right to protection of personal data.

The protection of privacy is ensured by Article 8 of the Convention of Human Rights and Fundamental Freedoms. The Charter of Fundamental Rights of the European Union, in Article 7, provides for the protection of private and family life, home and communication, and in Article 8, for the protection of personal data.

Directive 95/46/EC of Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (‘Data Protection Directive’) ensures the protection of personal data and applies regardless of the technology used for the processing of personal data.

-Susan

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The Lakota Tribe’s Lawsuit Over the Sweat Lodge Deaths Cites to Wrong DRIP

November 15, 2009

Following the sweat lodge deaths of three people who attended an Angel Valley self-help seminar, the Lakota tribe has filed suit [PDF] in the Arizona federal district court against the seminar leader, James Arthur Ray, and the Angel Valley Retreat Center, as well as the United States and the state of Arizona. (Hat tip: Religion Clause).

The Lakota Nation alleges that Ray and the Retreat Center have (1) Violated Article 1 of the Fort Laramie Treaty of 1868 by violating the peace between the United States and the Lakota Nation, (2) Desecrated the Onikig’a (sweat lodge ceremony) by causing the three deaths, (3) Violated the UN Declaration on the Rights of Indigenous Peoples Arts. 29 & 36, and (4) that Ray and the Angel Valley Retreat Center committed fraud by impersonating and Indian and should be held accountable for the deaths to the survivors.

They also demand that those who requested the sweat lodge be dismantled be charged with destruction of evidence, and request that the judge refer Ray for prosecution.

I think it’s fairly clear that the lawsuit, which in essence is a criticism of cultural appropriation and the commodifiction of Indian Heritage, is intended as a means of obtaining publicity rather than a serious legal claim. There are huge issues with the suit’s standing (such as requesting relief for the deceased individuals’ descendants), its causes of action, and the requested relief, which would prevent the Ogala Lakota Delegation of the Black Hills Sioux from going further with their claims. Sam Longblackcat’s press statement, released in regards to the lawsuit, suggests as much. After noting that, unlike James Arthur Ray, Lakota Indians “don’t go into a Roman-Catholic church, put on the Pope’s hat and take the Pope’s staff and call ourselves Pope,” Longblackcat states:

We expect this lawsuit to strengthen our stand as first nation people. Manifest destiny, divide and conquer, these are tactics to assimilate and annihilate the first nations – no matter on which continent. It happened in Vietnam, it is happening today in Iraq. We want the world to know that the first nations exist, and that we are not going to let anybody take from us ever again.

As for the lawsuit, it first bases its claims upon a violation of the Fort Laramie Treaty of 1868, 15 Stat. 635. The Fort Laramie Treaty was in face the basis of a case heard once before by the Supreme Court, in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). Article 1 of the treaty, which the suit claims Ray violated, states:

If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent, and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

As the Lakota tribe is in North and South Dakota, not Arizona, clearly there’s no claim based upon territorial jurisdiction, and no Indian persons were involved at the sweat lodge ceremony where the deaths occurred. So if there is wrong upon Indian person or property here, it’d appear to be based upon intellectual property. Having zero experience with Indian law, I have no idea if there’s any precedent for something like this, but I’m certainly not aware of any U.S. statutes that protect against cultural appropriation.

More interesting are the Lakota’s claims that are brought under the Declaration on the Rights of Indigenous Peoples (the unfortunately acronymed “DRIP”). The DRIP was a UN General Assembly resolution was adopted in 2007. However, the United States, along with Canada, Australia, and New Zealand, objected to its passing. The DRIP is therefore, for multiple reasons, not a “treaty” that can be incorporated into U.S. law via the Supremacy Clause, and it’s also not the sort of international law that can be Paquete Habana‘d in through the judiciary.

Even if that weren’t the case, the Lakota Nation’s complaint would be an inadequate pleading, as it does not quote DRIP as it was finally adopted, but rather quotes the 1994 draft articles. I think this was an honest mistake on the plaintiff’s part, not intentional, as the adopted DRIP is actually more favorable to their case. The Draft Articles that the complaint quotes merely provide that, “Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property.”

In contrast, the DRIP, as it was adopted, states that,

“States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.” DRIP Art. 11.

It also provides that indigenous people “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” DRIP Art. 31. So not only does DRIP provide for an aspirational cultural property rights regime for indigenous people, but also attempts to place an obligatory duty on states to “provide effective redress mechanisms” for violations of these rights. Unlike aspirational If the DRIP were a “real” treaty, Longblackcat might’ve had a legitimate claim to bring forward, particularly alleging that the U.S. does not provide a way of Indian tribes to protect their intellectual and cultural heritage from being used by scam artists like James Arthur Ray.

-Susan

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Alien Tort Statute Cases Resulting in Plaintiff Victories

November 11, 2009

Earlier today, I was hoping to find a list of Alien Tort Statute (ATS) cases that resulted in plaintiff victories of some sort or another — I figured that would be a pretty handy list to have for reference, so someone must have compiled it before. So while I’m sure another, better list does exist somewhere out there, my Google-fu was too weak to find it, and I had to go and make one myself.

This list is almost certainly incomplete, but it’s all I could scare up after a not-entirely exhaustive search, so if anyone knows of any I’ve missed, by all means tell me! As for total ATS cases ever filed, the official answer from a few sources seems to be “over one hundred,” without anything more specific; if anyone knows of a full listing of ATS cases ever filed, I’d be grateful if they could point me towards it.

A. Successful ATS Claims Against Non-Corporate Entities

  1. Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795): Suit against French captain who captured a Spanish slave ship in 1794. Defendant was forced to return slaves or pay restitution.
  2. Adra v. Clift, 195 F.Supp. 857 (D.Md.1961): Iraqi mother found in violation of law of nations by refusing to return custody of daughter to her father, and for forging passports for her to be admitted to U.S. However, the Lebanese father was denied relief as court found it to be in daughter’s best interest to remain with mother.
  3. In re Estate of Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1993): This was the first ATS case to go to trial. Defendant liable to the class for over $766 million in compensatory damages, and $1.2 billion in exemplary damages.
  4. Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996): Bench Trial. Case against Ethiopian guard for torture and CITD, affirmed by the 11th Circuit. Plaintiffs each awarded plaintiff $200,000 in compensatory damages and $300,000 in punitive damages. Also note that one of the attorneys for the plaintiffs was Harold Koh.
  5. Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D. Fla. 1997): “Judgment entered on behalf of Plaintiffs and against Defendants the Republic of Cuba and the Cuban Air Force for total compensatory damages of $49,927,911. Judgment entered for Plaintiffs and against the Defendant the Cuban Air Force (only) as punitive damages, the sum of One Hundred Thirty Seven Million, Seven Hundred Thousand Dollars ($ 137,700,000). Total compensatory and punitive damages awarded to Plaintiffs $187,627,911, for which sum execution issued against the Defendants Cuba and the Cuban Air Force and against any of their assets wherever situated.”
  6. Cabello v. Fernández Larios, 205 F.Supp.2d 1325 (S.D. Fla. 2002), aff’d in 402 F.3d 1148 (11th Cir. 2005): Jury verdict on Oct., 2003. Murder of Chilean economist by one of Pinochet’s military commanders, descendants sue for, inter alia, crimes against humanity and CITD. $3 million in compensatory damages ($2 mill. for extrajudicial killing, $1mil. for CAH), plus $1 million in punitive. So far, plaintiffs have recovered $200,000. (Also worth interest — 1th Cir. cited to ICCPR in its decision. It also found Larios could be indirectly liable under either a theory of aiding and abetting or conspiracy.) (Further, defendant in case is the source of one of the creepiest threats I have ever heard: “I will caress the little pigeons.”)
  7. Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006): “The three plaintiffs in this case are Salvadoran refugees who were allegedly tortured by military personnel in El Salvador during a campaign of human rights violations by the Salvadoran military from 1979 to 1983; the two defendants were leaders in the Salvadoran military. All of the plaintiffs sought compensatory and punitive damages under the Torture Victim Protection Act; two plaintiffs sought the same relief under the Alien Tort Claims Act. A jury awarded the plaintiffs a total of $ 54,600,000, and the court entered judgments accordingly. The defendants now appeal, contending that the statute of limitations bars the plaintiffs’ claims. We conclude, based on the doctrine of equitable tolling, that the claims are not time-barred.” Although the 11th Circuit reversed its decision initially, after finding the reversal was based on certain factual errors, the jury verdict was upheld in the entirety.
  8. Jean v. Dorelien, No. 03-20161 (S.D. Fla.) (verdict issued Feb. 23, 2007): $4.3 million verdict. ($580,000 recovered to date).
  9. Chavez v. Carranza, W.D. Tenn. No. 03-2932 M1/P (Nov. 18, 2005) (aff’d by 6th Cir., 17 Mar 2009): Jury verdict for $6 million against commander liable for crimes against humanity.

B. Default Decisions Entered Against non-Corporate Entities

  1. Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984). $10.4 million judgment, as yet unenforced, for torture by Paraguayan official.
  2. Martinez-Baca v. Suarez-Mason, 1988 U.S. Dist. LEXIS 19470 (N.D. Cal. 1988): Defendant initially contested, but default judgment in end.
  3. Paul v. Avril, 901 F. Supp. 330(S.D. Fla. 1994): Default after defendant decline to participate. Defendant Avril, then the elected mayor of Port-au-Prince, Haiti, was found to have “personal responsibility for a systematic pattern of egregious human rights abuses in Haiti during his military rule of September 1988 until March 1990. He also bears personal responsibility for the interrogation and torture of each of the plaintiffs in this case. All of the soldiers and officers in the Haitian military responsible for the arbitrary detention and torture of plaintiffs were employees, representatives, or agents of defendant Avril, acting under his instructions, authority, and control and acting within the scope of the authority granted by him. Many of the tormentors included members of the Presidential Guard and Avril’s personal security detail.” The court granted $41 million in compensatory and punitive damages to six Haitian victims of torture and false imprisonment.
  4. Xuncax v. Gramajo and Ortiz v. Gramajo, 886 F. Supp. 162 (D. Ct. Mass. 1995): Suit by Kanjobol Indians against former Guatemalan Defense Minister. Default judgment award, $47.5 million. Court sustained claims for torture, summary execution, disappearance, and arbitrary detention as obvious bases of ATS jurisdiction, but called cruel, inhumane, and degrading treatment as a “closer question,” before ultimately accepting it.
  5. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995): Default decision on the merits — jury determined damage award of $745 million.
  6. Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996): Incitement to genocide, based on Rwanda. $103 million awarded.
  7. Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D. Ga. 2002): Default decision on merits – $140 million.
  8. Doe v. Saravia, 348 F. Supp. 2d 1112, 1156-57 (E.D. Cal. 2004): Case involved the 1980 assassination of Salvadoran Archbishop Oscar Romero (go watch the movie Romero!). ATS liability found for crimes against humanity and extrajudicial killing. Default judgment of $10 million judgment ($5 million compensatory, $5 million punitive). (Note of interest: trial court cited to ICTY cases, as well as to Rome Statute. Court cites credibility of Rome Statute by noting that “four of the five members of the Security Council” have signed it. But irrelevant that U.S. has not.)
  9. Doe v. Liu Qu (N.D. Cal. 2004): Declaratory relief granted.
  10. Reyes v. Grijalba (S.D. Fl. 2006): $47 million to six plaintiffs .
  11. Doe v. Constant (SDNY 2006): Defendant was a leader of a Haitian political police force used to “repress and terrorize” the civilian population. Damages at $4 million total compensatory, $15 million punitive. ($300,000 recovered so far). Point of interest: During a deposition, Constant stated, “I’m not a member of F.R.A.P.H. I’m a leader of F.R.A.P.H.” I am guessing that did not help his case. Also note that the charges in the ATS case were also relevant to his sentencing for a mortgage fraud conviction in People v. Constant, 842 N.Y.S.2d 255, (2007).
  12. Mwani v. Bin Ladin, Mwani v. Bin Ladin, 244 F.R.D. 20 (D.D.C. 2007): Plaintiff, 523 Kenyan citizens, brought an action under the Alien Tort Claims Act (ATCA), 28 U.S.C.S. § 1350, for harm sustained as a result of a truck bomb exploding outside the United States Embassy in Kenya allegedly at the direction of defendants, a terrorist organization and its leader. The citizens filed a motion to set a date for ex parte proof and for entry of default judgment under Fed. R. Civ. P. 55 against defendants. Court later allowed for evidentiary hearing on damages, but found no right to jury trial on the issue.

C. Successful ATS Claims Against A Corporation

  1. Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008): Defendant did make an appearance but refused to defend himself. Plaintiffs were awarded $80 million in damages total. “The Defendant in this case, one of the largest drydock companies in the Western Hemisphere, with tens of millions if not hundreds of millions of dollars in annual revenues, conspired with the Republic of Cuba to force Cuban citizens to travel to facilities the Defendant owns in Curacao, to hold them in captivity there, and to force them to work repairing ships and oil platforms.” The court also found that an ATS claim was sustainable as, “Forced labor constitutes a violation of a well-established, universally-recognized norm of international law. It is widely recognized as one of the handful of serious claims for which the ATS provides jurisdiction in U.S. district courts regardless of where it occurred. It is a brutal offense condemned by the civilized world. This Court is compelled to act strongly to punish and deter it.”
  2. Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008) (Aug. 2009): Plaintiff’s verdict for $1.5 million compensatory damages and $250,000 in punitive damages. Appeal planned.

D. Ongoing Claims

  1. Lizarbe v. Rondon, 642 F. Supp. 2d 473 (D. Md. 2009): Claims arise out of defendant’s participation in the Peruvian “Accomarca Massacre.” Defendant filed for dismissal based on personal jurisdiction, statute of limitations, immunity under FSIA, exhaustion of remedies, political question doctrine, act of state doctrine, failure to state a claim, that plaintiffs were nor “aliens,” whether venue was proper, and whether plaintiffs had standing as personal representatives for decedents’ estates. The District Court denied them all, and the certificate of appealability was likewise denied.

E. Plaintiffs Receiving Out of Court Settlements for ATS Claims Against Corporations or State Actors

  1. Jama v. U.S. I.N.S., 22 F.Supp.2d 353 (D.N.J. 1998). Court granted motion to dismiss of ATS claims against INS, but denied motion to dismiss against INS agents in their personal capacity. (Judge must’ve been predicting Samantar.) Later, United States settled some of the claims including ATS claims.
    The settlement agreement provided: “In this Settlement Agreement, plaintiffs and the government defendants settle any and all claims filed against the INS and/or the United States, including those stated in the first amended complaint filed on September 23, 1997, in Jama, et al. v. INS, et al., Civ. No. 97-3093 (DRD) (D.N.J.) (the “lawsuit”), alleging, inter alia, tort liability for damage to property and for emotional damages, violations of United States obligations under various international treaties, and violations of the Religious Freedom Restoration Act of 1993 (RFRA).” No word on how much the settlement was for.
  2. Doe v. Unocal, 248 F.3d 915 (9th Cir. 2001): Undisclosed Sum, various sources cite “millions.”
  3. Wang Xiaoning vs. Yahoo!: Undisclosed, but did cover Plaintiff’s legal fees.
  4. Wiwa v. Shell, 2009 U.S. App. LEXIS 11873(2d Cir.) (June 3, 2009): $15.5 million settlement.
  5. Abiola v. Abubakar, 2008 U.S. Dist. LEXIS 2937 (N.D. Ill., Jan. 15, 2008): “Based on discussions with the parties, it appears that the settlement in the case, the amount of which is evidently confidential, is being funded by the government of Nigeria, which is not a party to the lawsuit. It further appears that the government of Nigeria is the driving force behind the request to vacate the June 27, 2006 decision. The parties have adopted the request because it appears to be important, and perhaps necessary, to finalize the settlement.”

F. Defeated ATS claims after jury trial

  1. Ford v. Garcia, aff’d in 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147, (2003): (TVPA) Jury trial held October, 2000, verdict to Defendants due to apparent constraints in jury instructions. First jury verdict in a contested trial under the TVPA only.
  2. Romero v. Drummond Co., 552 F.3d 1303, 2008 U.S. App. LEXIS 25861 (11th Cir. Ala., 2008): Verdict given July, 2007, finding Drummond not liable for deaths of the three union representatives.
  3. Bowoto v. Chevron, 312 F. Supp. 2d 1229 (N.D. Cal. 2004).

    4. In December 2008, a jury unanimously found for Chevron. Chevron then, somewhat ridiculously, requested attorney’s fees, which the court denied, noting allowing the Defendant to recover fees would have a “chilling effect” on future human rights litigation. The court was not particularly impressed with the request that Nigerian villagers should pay a billionaire corporation for its attorneys fees, as seen from the following discussion:

    Defendants argue that plaintiffs have not provided sufficient evidence to establish that plaintiffs are indigent. According to defendants, plaintiffs should also have provided the court with evidence of their assets. Defendants’ objection is not well taken. It can reasonably be assumed that plaintiffs do not earn pensions or accrue other significant assets through their work as, for instance, fish sellers in a Nigerian village. Defendants also argue that, because of the low cost of living in Nigeria, plaintiffs’ incomes “place them well above the average.” [FN2: Defendants cite a World Bank resource that lists the gross national product of Nigeria as amounting to $ 930 per capita in 2007]. While the Court accepts that the cost of living is lower in Nigeria than in the United States, defendants’ bill of costs seeks reimbursement for witness per diems, service of subpoenas, court reporters, videotaping, transcription, and photocopying in this county. The lower cost of living — and correspondingly lower incomes — in Nigeria would therefore suggest that plaintiffs are less able, not more able, to pay these fees, which are calculated according to U.S. standards. The Court finds that the declarations filed in conjunction with the instant motion, as well as evidence at trial about the abject poverty of villagers in Nigeria’s Ondo State, is sufficient to establish that plaintiffs are indigent. Bowoto v. Chevron Corp., 2009 U.S. Dist. LEXIS 38174 (N.D. Cal., Apr. 22, 2009).

  4. Hawa Abdi Jama v. Esmor Corr. Servs., 2009 U.S. App. LEXIS 17950 (3d Cir. N.J., Aug. 12, 2009): Jury trial, no liability under ATS.

Updated, July 3, 2010: Still slowly working my way through updating this list, although it remains incomplete. I’m working on a master list of all ATS cases — wins, losses, and settlements — which is about halfway done, and eventually I’ll post that up instead.

-Susan

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Tackling A Difficult Issue: United States v. Comstock

November 10, 2009

A recent article (sub. possibly req.) in The Economist comes to the defense of an unlikely group: sex offenders.  The article explains how punishments for sex offenses in the United States have become increasingly draconian in recent years; politicians view newer, tougher laws as an easy way to look “tough on crime,” while no politico in their right mind would vote against such a law.  As one Georgia politician observed:

“Sex offenders are the most reviled people in society. . . . They’re one step above terrorists; there’s no political downside to cracking down on these folks.”

Unfortunately, as the Economist explains, mounting evidence suggests that such laws aren’t even effective. 

Despite those concerns, Congress stepped up federal sex offender laws in the 2006 Adam Walsh Child Protection and Safety Act.  Among other things, the Act authorizes civil committment of any individual currently incarcerated in the federal system, even after the expiration of their prison term.  The Act only requires that such individuals be found “sexually dangerous” in a commitment hearing, even if the inmate has not previously been convicted of any sex-related crime.  Once it is established by “clear and convincing evidence” that an individual is “sexually dangerous,” they may be confined indefinitely. See 18 U.S.C. 4247.

The Supreme Court is about to consider the constitutionality of these civil committment procedures in United States v. Comstock.  The interesting thing about the case is the way in which it has reframed the debate: the debate over such laws is not “pro-sex-offender” vs. “anti-sex-offender” (a ludicrous debate).  Instead, the libertarians have gotten involved, arguing that the Act overstepped congressional powers [PDF]. 

I note this case principally to observe that it is one of the few situations where I’m happy to see a little judicial activism.  If ever there was a situation where an immensely unpopular minority was suffering from the “violence of the majority,” this is it.  These individuals certainly deserve punishment of the highest degree, but my hope is that the judiciary will approach this problem a bit more objectively than legislators have.

-Michael

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There’s a Map for That: AT&T sues Verizon

November 10, 2009

In the first commercial ever to be more annoying than the “Can you hear me now?” ads, Verizon’s latest commercial series, “There’s a map for that,” is a direct attack on AT&T and their “There’s an app for that” iPhone-related marketing campaign.

mapforthat

The ad shows two maps comparing AT&T and Verizon’s 3G network coverage area, with Verizon’s map covering vastly more territory. Now, AT&T had filed suit against Verizon in the Northern District of Georgia, seeking an injunction to prevent further use of the maps in advertising. AT&T alleges that the maps are misleading, as although the Verizon map indicates total coverage, AT&T’s map only indicates a of its network area. This is because Verizon uses only 3G networks. In contrast, the 3G network is only a tiny footprint of AT&T total coverage, which also includes the slower but still usable 2.5G network. AT&T claims, therefore, that the maps are falsely claiming AT&T only has coverage, of any sort, in the tiny blue shaded areas.

Verizon has already changed the ads once before in response to AT&T complaints. Originally, the ad included the words “Out of touch,” which were removed, and Verizon added in small script “Voice & data services available out of 3G coverage areas.” With that modification, I fail to see what meager claim AT&T has remaining. Yes, I am sure many consumers are bad at reading maps and forget to pay sufficient attention to the legends, but that’s, well, advertising. There is nothing at all incorrect or even directly misleading about the advertising campaign — Verizon is just counting on people’s passive ignorance. It’s not nearly as shady as, say, mucking about with the y-axis on two graphs and claiming they show comparable figures.

I’m actually surprised AT&T didn’t just go all out and add in a meritless copyright or trademark infringement claim for the “there’s a map for that” slogan. Instead of going for the obvious meat, however, AT&T appears to have opted for the “Americans are stupid so ads cannot be at all complex” attack.

As discussed before on this blog, maps are inherently nonobjective. To claim that Verizon’s map is “misleading” is the same as claiming its “misleading” to depict a map with Greenland the same size as Africa. AT&T may not like the subject matter which Verizon chose to depict in its maps, but there is nothing incorrect or deceptive about them; they show precisely what they say the map shows, which is a comparison of 3G networks.

-Susan

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