Monthly Archives: October 2010

Second Circuit’s Error in Kiobel

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This is kind of petty, and not particularly timely, but the Second Circuit’s decision in Kiobel contained one pretty blatant error I wanted to point out. It’s a minor mistake, and entirely insignificant regarding the outcome of the case, but it is perhaps indicative of a lack of familiarity with the history of the Alien Tort Statute:

Such civil lawsuits, alleging heinous crimes condemned by customary international law, often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances. The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — has led many defendants to settle ATS claims prior to trial. Thus, our Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade), and the Supreme Court in its entire history has decided only one ATS case.

Although much of this statement is subjectively wrong, the last line is outright false. Sosa was not the first — O’Reilly De Camara v. Brooke, 209 U.S. 45 (1908) was the first case brought under the Alien Tort Statute to make its way to the Supreme Court. Although the case was not particularly significant, it is notable in that it “perhaps implies that an unjustified seizure of an alien’s property in a foreign country by a United States officer would come within it.” See Khedivial Line, S. A. E. v. Seafarers’ Intern. Union, 278 F.2d 49 (2d. Cir. 1960).

The rest of that paragraph from the Kiobel decision is also dubious.

ATS cases “often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances.” The Second Circuit is abusing the meaning of “unique,” here. Events that took place abroad and in chaotic or troubled circumstances are in fact frequently litigated in US courts, albeit usually involving fact patterns that are different from the typical ATS case.

The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — Juries may be capable of awarding multibillion-dollar verdicts in ATS cases, but that is true for all sorts of cases. The only case the Second Circuit cites to is Karadzic, which was a default judgment. Moreover, a jury decision on the merits in favor of a plaintiff in a corporate defendant case has happened exactly once in any ATS case ever, in Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008). Just once. That is hardly grounds for invoke the specter of “juries awarding multibillion-dollar verdicts.”

… has led many defendants to settle ATS claims prior to trial. Wait, don’t courts consider it a good thing when cases settle before trial? And wait a second here — “many defendants” is quite a stretch. I am only aware of seven ATS cases ever that resulted in a settlement. I’m willing to assume there are a few out there that I’ve missed, but not many. The Second Circuit itself lists only two. There have been, by an extremely conservative estimate, maybe three hundred ATS cases in total that were “legitimate.” By legitimate, I mean not jail-mail and not filed by obviously crazy people. Of these three hundred or so cases, under a dozen have ever resulted in a settlement. So at the extreme, a mere 3% of ATS cases wind up settling. The average settlement rate for torts in federal courts is around 67%. I therefore find it absolutely ridiculous that the Second Circuit is using the threat that “many defendants settle before trial” as a reason for why the ATS is ‘dangerous’ or ‘unpredictable.’

There are other errors in Kiobel that are more significant, and are legal errors rather than factual ones, but these mischaracterizations are telling. The court was not simply adjudicating the merits of the plaintiffs’ claims — obviously the court found that its fears of what the ATS was capable of doing to be significant enough to include in its opinion. But these fears were based on stilted facts, not on the actual record.

-Susan

Why I Will Never Vote For a Creationist

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Creationism is my political dealbreaker. I have never voted for or supported a candidate that admits to disbelief in the theory of evolution, and I cannot envision a possible scenario in which I ever would. If there was a worst-case situation, and I was forced to choose between a Marxist candidate and a creationist candidate… well, I’d probably choose neither and vote for the Rent Is Too Damn High guy instead.

Actually, I have two political dealbreakers. In addition to creationists, I won’t vote for anyone who believes extraterrestrials have visited earth. This is a dealbreaker for much the same reason creationism is, although it’s less important, as I would probably never vote for the politicians who believe in aliens anyway. (Sorry, Reagan, that might rule you out too.)

But creationism is the dealbreaker that is more commonly invoked, and it has yet to lead me astray.

It’s not that I think creationists are idiots. You don’t have to be an idiot to be a creationist. What you have to be, though, is willing to discard reality in favor of an abstract ideology. Being a creationist is proof that, based purely upon ideological motivations, you are capable of ignoring the overwhelming wealth of evidence that shows the reality of evolution, and instead carefully construct a fantasy version of ‘truth’ out of the few meager scraps of misconstrued data and outright fabrications that creationism has to offer. And, at least for me, that completely disqualifies you from being an elected official.

There has been a bit of a brouhaha today over Christine O’Donnell’s pedantic denial of the First Amendment’s bar on government endorsement of religion. I wish more attention was being given to the underlying context, though, and not the silly sound bites.

O’Donnell was arguing is that public schools ought to be able to teach creationism, and not evolution, that a government institution should be able to pick the creation myth of a particular religion — in this case, generochristian — and force all to learn ‘intelligent design’ instead of modern biology.

During the debate, O’Donnell argued that Coons’ views on teaching of theories other evolution showed that he believes in big-government mandates. [sic]

“Talk about imposing your beliefs on the local schools,” she said. “You’ve just proved how little you know not just about constitutional law but about the theory of evolution.”

In fact, O’Donnell believes that forbidding public schools from endorsing religious philosophies “is a blatant violation of our Constitution. The Supreme Court has always said it is up to the local communities to decide their standards.” This is false, of course, but O’Donnell’s ignorance of constitutional law is just a distraction from my main point, which is the O’Donnell’s willful ignorance of science. But it is worth noting that O’Donnell is now on the record enthusiastically endorsing a theory of Constitutional interpretation that would allow public schools to teach theories of Islamic embryology and astronomy or Vedic science. And

When it comes to O’Donnell’s candidacy, belief in creationism is the least of her problems. But it is a very telling indication of her inability to objectively assess concrete real-world situations and reach a conclusion that is not fundamentally dependent upon abstract convictions.

And, on a smaller scale, those who support O’Donnell are displaying the same sort of willful blindness as are creationists. The prevailing conservative ideology is that she is the Tea Party Candidate, the true conservative; that she would be a wise statesmen who could help create a government based on sound conservative principles of governance. And, because of that ideological meme, a disturbing proportion of conservatives are denying an almost objective reality, or as objective a reality as it ever gets in politics: that O’Donnell is unqualified, not particularly bright, devoid of substantive opinions on government policy, and possesses a record marred by dozens of ethical lapses.

To be fair, all of those attributes are endemic among the political class. But O’Donnell is thin gruel even by that low standard. Support for O’Donnell is not based upon any factual evidence of her specific abilities as a politician, but upon the abstract belief that she is the true conservative candidate and therefore qualified to be senator.

-Susan

Polygamy, the Constitution, and Reality TV

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As a general rule, it is inadvisable to go on to a talk show or reality tv show to discuss your criminal activities. You might think this would be obvious advice, but you would be wrong.

Still, I was surprised to see that TLC was coming out with a new show called “Sister Wives,” which is essentially the reality show version of Big Love. Polygamy is of course illegal in Utah, where the series is filmed, as well as in all other U.S. jurisdictions. And, predictably, the police are now investigating the family for possible charges of bigamy and adultery.

Utah’s bigamy statute provides that

“[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”  Utah Code Ann. § 76-7-101 (2003).

Not to mention, just four years ago in 2006, the Supreme Court of Utah rejected a barrage of Constitutional and statutory challenges to the statute, in State v. Holm:

Holm argues that his conviction under the “purports to marry” prong of the bigamy statute was improper as a matter of statutory interpretation.   Specifically, Holm argues that he did not “purport to marry” Ruth Stubbs, as that phrase is used in the bigamy statute, because the word “marry” in subsection 76-7-101(1) refers only to legal marriage and neither Holm nor Stubbs contemplated that the religious ceremony solemnizing their relationship would entitle them to any of the legal benefits attendant to state-sanctioned matrimony.  Second, Holm argues that his conviction under the bigamy statute was unconstitutional as applied in this case because it unduly infringes upon his right to practice his religion, as guaranteed by our state constitution.   Third, Holm argues that his conviction under the bigamy statute was unconstitutional under the federal constitution. …

We reject each of these arguments.

So why, then, did Kody Brown and his wives agree to go on the show on the first place?

The family does not seem to be an obvious bunch of dumbasses, which is generally my first guess when it comes to this sort of thing. However, while I would not rule that possibility out entirely, given the context of the show, I wonder if the family was motivated, at least in part, not in spite of the fact that there was a risk of prosecution, but because of it. Their stated reason for agreeing to star on Sister Wives is to raise awareness of the polygamous lifestyle, and it is not a far leap from there to wonder if perhaps they also hope to de-criminalize polygamy by bringing a favorable test case before the courts.

If so, that is a bold and risky move to make. Bigamy is a felony that is punishable by up to five years in prison, and so far, no court has ever found that laws criminalizing bigamy are not constitutionally enforceable.

Still, bigamy prosecutions are rare, and prosecutions of polygamous individuals are rarer still. And, apparently, all prior polygamy prosecutions have involved allegations of abuse or other improper activity. If the Brown family does end up facing prosecution, the case might very well end up being a constitutional landmark.

It turns out the GW Law professor Jonathan Turley has gotten involved in the case, and is lead counsel for the family. Turley’s take on the case is pretty much the same as my own:

The use of this statute to prosecute the Browns would be in my view unconstitutional. It would also end a long-standing policy to confine prosecutions to those who abuse children or commit such crimes as fraud. We are confident that the authorities will find no such criminal conduct in this case and we intend to cooperate to the fullest in resolving any such questions from the State. I hope that the prosecutors will recognize that this would be bad criminal case making bad criminal law. It is, after all, a television show and there is no need to move the matter from the television guide to the criminal docket.

Whether it is based on First Amendment religious freedoms, or on freedom of association grounds, or (most likely) Lawrence-style due process protections, criminal prosecution of polygamy is likely not sustainable under the federal Constitution. I suspect that the current Supreme Court would have a very hard time finding prosecution of the Brown family to be permissible — even the faction that dissented in Lawrence might now be inclined to accept its precedential value, albeit grudgingly.

Besides, if there was ever the perfect defendant for testing the constitutionality of criminalizing polygamy, the Browns are it. I actually watched an episode of Sister Wives last night, and it was primarily remarkable for how utterly banal it was. If it wasn’t for the sub-plot involving Kody Brown taking a fourth wife, the show would be so lacking in material that it probably wouldn’t be able to exist. I mean this in the nicest way possible, but the family is super boring. In a lot of ways, it reminded me of another TLC show, 18 and Counting, about the infamous Duggars. While temporarily intriguing for the gawking factor, both shows very quickly devolve into utterly trivial depiction of average home life.

And Sister Wives, with its mere 1:4 adult-to-kid ratio, can’t even come close to matching the logistical ingenuity displayed by the Duggars, who face a more daunting 1:10 ratio. In fact, with their incredible feats of organization and their eerily unflagging cheeriness, the Duggars seem far more alien to mainstream American life than the Browns ever could.

-Susan

Kitten Tricks: A Lesson for Cats on How to Make Your Human Give You Treats

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The commonly held belief that cats are incapable of learning tricks is nothing but vile propaganda espoused by the corrupt canine lobby. Cats are plenty good at tricks — they just refuse to pollute the free market by providing their services for free. While dogs advocate for nanny-state policies by doing tricks on command in the expectation of receiving welfare benefits at some point in the future, cats will do tricks only when they know that they will be immediately and satisfactorily rewarded for it — i.e., for every trick they do, they better see some food. Cats do not perform on credit.

Because the internet already has plenty of blog posts about the law, but is almost entirely lacking in pointless cat videos, I thought that I might help correct this deficiency by forgoing legal commentary for the day in favor of posting a film clip of Ragnarok doing some tricks.

Ragnarok’s first birthday is sometime this month. Back in December of last year, he was found all alone on a soccer field in Athens, GA, nothing but a starving, smelly, trash-covered kitten, and only a couple months old. Twelve pounds and ten months later, he is not really a kitten anymore, but he still has not learned to meow. Although he can squeak louder than just about any cat I’ve ever met.

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