Monthly Archives: August 2012

Kiobel: A Blessing In Disguise?

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When the Supreme Court first got hold of Kiobel v. Royal Dutch Petroleum, the case presented a relatively straightforward question: does the Alien Tort Statute allow for liability against corporations? Answering that question should have been a difficult enough task. But the Supreme Court wanted more, so it scheduled the case for a second argument that will consider whether the Alien Tort Statute applies extraterritorially–that is, whether (and when) it covers violations of the law of nations happening outside the United States.

For fans of the Alien Tort Statute, that second argument is a bad sign. Many (including me) worry that the Supreme Court is readying itself to use its trusty “presumption against extraterritoriality” to significantly weaken the statute. Many of the Justices’ questions at the first argument hinted that they didn’t want U.S. quasi-international law to reach outside the country. But if the Alien Tort Statute doesn’t punish acts outside the United States, it’s not likely to be of much use at all.

Yet after having some time to think it over, I’ve begun to wonder: would a “bad” Supreme Court decision really be that bad at all?

My assumption has always been that a Supreme Court decision squishing the Alien Tort Statute would spell the end of the matter. Plaintiffs would largely be out of luck, and international law professors around the country would have to find some other topic to occupy their time. But the reality is that the Supreme Court is often not the last word on a subject, especially where the subject concerns statutory (as opposed to constitutional) interpretation.

It’s actually pretty surprising how often Congress responds to Supreme Court decisions. Of course, there are some relatively well-known examples, such as the time when Congress “reversed” a Supreme Court employment discrimination case by passing an act named after the plaintiff in the case. But would you have ever guessed that Congress considers an average of 5 bills for each Supreme Court decision? That’s what one study found.

Of course, not all (or even many) of these Congressional responses are eventually passed. And some of these bills are positive “codifications” of Supreme Court decisions. Even so, the rate of “Congressional overrides” is surprisingly high, all things considered. According to one study, about one out of every ten Supreme Court statutory interpretation cases spurs Congress to issue legislation reversing or modifying the case. (Where the Court invalidates a statute for constitutional reasons, Congress has attempted to reinstate the statute in some form in 48% of cases.) The chance of Congressional reversal goes up when other factors are present, such as (1) when the decision is not unanimous, (2) there is significant media attention, (3) the United States was on the losing side of the case as an amicus, (4) there were a significant number of amici on the losing side, and (5) the case involves civil liberties issues.

If the Supreme Court guts the Alien Tort Statute in Kiobel, the case would seem to invite Congressional reversal. Kiobel has garnered a good amount of media attention. It’s drawn an enormous amount of amicus attention, too; 14 amicus parties supported the human rights victims in the initial argument, and a breathtaking 30 more briefs supported the victims in advance of the second argument. The United States initially supported the petitioner, even though it later switched its argument and now says it’s supporting “neither party.”  Thus, there are many voices supporting the Petitioner’s side. And when all is said and done, this case is not likely to be unanimous.

As I’ve said before, a negative decision for the petitioners in Kiobel also feeds the narrative that the Supreme Court loves corporations. (Just today, in fact, the Huffington Post had a blog article begging the Supreme Court to keep the “legal responsibilities” of corporations intact by finding for the Petitioner in Kiobel.) So Congress might be inclined to reverse Kiobel as convenient way to strike back at the Supreme Court’s purportedly cushy treatment of corporations–especially if Congress grows more liberal after the elections.

Congressional action would be welcome in this context. As it stands now, Alien Tort Statute litigation is something of a crapshoot. Some claims are allowed in some circuits and disallowed in others. The same is true when it comes to identifying “proper” defendants. Certainly, a Supreme Court decision in Kiobel could just as easily resolve this mess while keeping the statute intact. But the fuzzy treatment given to the statute in Sosa v. Alvarez-Machain makes me think that any Supreme Court decision in this area is likely to do a poor job of dispelling confusion. In contrast, when Congress enacts an override, research suggests that the legislation often does serve to clear up judicial confusion. Thus, Kiobel might convince Congress to finally get of its butt and do something about this vague little statute that hasn’t been touched since 1789, to ultimately better effect than a Supreme Court decision.

I’ll admit that I might just be stretching here to find a silver lining. But maybe, just maybe, this will all work out in the end.

-Michael

Why I Don’t Write About Trayvon Martin

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My fiancee has something she calls “the word list”: a list of words that she would prefer never to hear. Generally, they’re just things that sound gross. “Moist” is now tops on the list. Any time I utter a word on the list, I get pained look from her and a disgusted “Don’t say that!”

If this blog had a word list, I’d put “Trayvon Martin” on it.

Don’t get me wrong. I appreciate all the thoughtful comments on Susan’s post (and get a few laughs from some of the less-thoughtful ones). Susan’s posts on the subject are just like her posts on other subjects: extraordinarily well-researched, expertly written, and consistently interesting reads. It’s no coincidence that our “readership” has spiked since she started writing them.

Still, you’ll never see me writing a post on Trayvon, excepting this one.

That might seem strange given my interest in criminal law. After all, I’m the one who has written unreadably dense posts about habeas and sentencing and other criminal law arcana. Susan, remember, wanted to get this blog going as a way to talk about international law (and trade) issues. So why haven’t I hopped on the Trayvon train with her?

Basically, I don’t write about Trayvon Martin because it’s a futile exercise. That stems from two basic truths. First, we don’t know as much as we think we know (or even know what we don’t know). And second, the facts we know now will ultimately be somewhat irrelevant at trial.

First, despite all the interviews and studies and leaks and analyses, we simply don’t know what evidence the police hold, what evidence Zimmerman has, or what more might come to light. Any factual analysis of the Trayvon case operates on less-than-complete information. In other words, it’s a guessing game. Certainly, guessing games are sometimes fun. But I find guessing to be exceptionally tricky in this case, where emotions are chaged and most everyone’s “guesses” are colored by their feelings on broader issues like race and violence.  Thus, no matter how much amateur sleuthing we do, it’s not likely to get us anywhere.

Second, even if we learned all the facts, that wouldn’t tell us what’s going to happen at trial. Trials, of course, are governed by rules. These rules often end up excluding evidence. At the very least, evidence is presented in a very different light because of the rules; rather than a coherent story, any criminal jury will hear disjointed, often-tedious testimony. And things that might seem convincing in blog form are unlikely to play well before a jury. For instance, a point-by-point breakdown of one paticular statement by the defendant might simply send the jury into a coma. In short, even if you think you’ve “figured out” the Martin case, the jury might reach a very different result. Some might find that difference interesting. I find it mostly frustrating.

It’s also important to maintain some perspective. A Supreme Court case wrestling with the standards for determining procedural default in the habeas context may sound boring, but will ultimately affect thousands of defendants. In contrast, the Zimmerman case is likely to remain one case about one defendant. So I’ll keep focusing on the big stuff.

Trayvon Martin. I’m adding it to the word list. And throw “Zimmerman” on there, too.

-Michael