So could the 9th Circuit correctly claim that Proposition 8 doesn’t meet even this lenient standard for constitutionality? Probably not. Even though all of the arguments in favor of Prop 8 are, objectively speaking, entirely asinine, a hefty dose of absurdity has never been a bar to legislation passing muster under rational basis review.

But it’s difficult to place the blame on the 9th for deviating from some idealized “true” rational basis standard when the Supreme Court has repeatedly indicated that we are no longer playing by that same rulebook. “True” rational basis is still applied today to abstract economic or administrative regulations, it is not a dead letter in all respects, but it hasn’t been applied to an intimate associations case since around the time of Bowers v. Hardwick.

There are a number ways in which the Supreme Court could choose to synthesize the line of cases leading up to Perry. The most obvious and straightforward method would be to simply go ahead and recognize sexual orientation as a quasi-suspect class, full stop. But that is not a politically feasible outcome, nor would it necessarily result in the fullest integration of existing precedent.

Looking from Skinner to Griswold, to Eisenstadt, Tremble, Moreno, Lawrence, and now Perry, the formulation that I would suggest is this: there is no legitimate state interest in imposing disabilities on individuals that are members of non-traditional family arrangements because they are members of non-traditional family arrangements. Whether interpreted as recognition of a broadly defined quasi-suspect class or as a fundamental right to be free from illegitimate interference with the choices central to personal dignity and autonomy, the result would be the same. While applying something well below a strict scrutiny evaluation, the U.S. Supreme Court has nevertheless repeatedly recognized that legislation which singles out “non-traditional” family structures for disfavored legal status cannot be rationally based upon (1) the State’s unsupported assertion that the family arrangement it is endorsing is preferable because of the arrangement’s ‘traditional’ character or inherent moral superiority; or (2) a marginal benefit to a legitimate objective that, either due to the de minimis amount of the benefit or its dubious probability, is so disproportionate with the scope of the harm imposed on the disfavored family structure as to compel the conclusion that the surmised benefit is not the actual purpose of the law.

In other words, it looks a fair bit like Perry.

But this is by no means limited to the question of same-sex marriage. The protections applied in Perry are equally applicable to protections enjoyed by heterosexual couples, even if for political reasons it is gays and lesbians that are more often the target of infringing legislation. If rational basis review were truly applicable to legislation in this realm, however, the State would have broad powers to eliminate or prohibit any union it thought not ideal, gay or straight, so long as the prohibition was not based on a class protected by strict scrutiny.

Consider a situation in which the State has enacted a law known as “the Homemaker Act,” which mandates that, henceforth, in order for any marriage to be recognized, or continue to be granted recognition, one partner must act as the primary caretaker of the home while the other partner was the breadwinner. The law would not make any distinctions based on gender — it doesn’t matter whether the wife or the husband stays home to tend the hearth, as long as someone does.

Is there any reason, under the arguments advanced by Prop 8 proponents, that such a law could be constitutionally invalidated? Not that I can see.

After all, this is a well established traditional conception of marriage. The purpose of marriage is to permit couples to engage in an efficient division of labor while assuring a certain minimum degree of security to all parties involved, so that a married couple can have one parent stay home and personally raise children — which is the optimal environment for a child to be raised in — instead of shipping the kids off to day-care to be raised by strangers. By making the working spouse obligated to support the non-working spouse for life, the non-working spouse will have sufficient assurance of future support to be able to forgo any ability of generating income for themselves, and is able to focus all efforts on raising children without the risk of being left destitute. Marriage exists because a spouse that stays home to raise children is thereby put in an extremely vulnerable position — one which the state has mitigated through the series of legal obligations known as marriage.

In other words, if you are in an intimate personal relationship with another person, but both parties are working, you have absolutely no need for the protections offered by marriage. The State has no interest in legally recognizing a couple where both parties have adequate incomes so that neither is reliant upon the other. Although it’s true that dual-income couples can and do reproduce, because neither party has been made financially vulnerable by the arrangement, marriage does not provide any additional benefit to the couple’s ability to raise children, and it is unnecessary to grant privileges where it will do nothing to support the State’s objectives. Moreover, because of “the state’s legitimate interest in promoting the family structure that has proven most likely to foster an optimal environment for the rearing of children,” as one Amici in Perry put it, the State can offer incentives to couples that have adopted this ideal family structure — which are the only couples that benefit from this incentive anyway — while denying it to couples that are not providing the ideal family structure. Allowing all couples to get married would, after all, undermine the social understanding of marriage as an enterprise dedicated to the rearing of children.

Although a hypothetical Homemaker Act would be politically unfeasible at the present time, the sentiments behind it would undoubtedly have been endorsed by prior generations. And it wouldn’t be hard to find a modern politician or two that would endorse a more limited version of such an enactment. Rick Santorum has, in fact, already gone on the record advocating that the government should discourage two-income households:

“In far too many families with young children, both parents are working, when, if they really took an honest look at the budget, they might find they don’t both need to,”

What happened in America so that mothers and fathers who leave their children in the care of someone else — or worse yet, home alone after school between three and six in the afternoon — find themselves more affirmed by society? Here, we can thank the influence of radical feminism…

Sadly the propaganda campaign launched in the 1960s has taken root. The radical feminists succeeded in undermining the traditional family and convincing women that professional accomplishments are the key to happiness.

The enactment of a diluted version of the Homemaker Act is not inconceivable. And it would pass constitutional muster under a “true” rational basis review, as it is rationally related to an objective that has been repeatedly declared to be legitimate. All of the arguments that were advanced by the Prop 8 proponents would apply equally in this circumstance, resulting in the conclusion that a mandatory-homemaker statute is a valid, constitutional enactment, because it is based upon traditional notions of marriage and is rationally related to the State’s interest in promoting the optimal family structure for the upbringing of children.

Although it would pass rational basis review, such a law would be a deep infringement upon the right of private association. Luckily, for close to two decades now, rational basis review has been applied to laws like Proposition 8 or the Homemaker Act in name only — and, in practice, the courts have consistently recognized stronger protections for laws that infringe upon private family relationships.

-Susan

But at least in the context of same sex marriage prohibitions, could intermediate scrutiny be directly invoked on the basis of the Supreme Court’s prior illegitimacy jurisprudence? Illegitimate children are already a suspect class under the law; it is impermissible under the 14th Amendment to burden children whose parents were not married at the time of their birth simply in order to encourage future couples to get married before having kids. So why can the state require that the children of same sex couples be illegitimate in order to encourage opposite sex couples to make their children legitimate?

The argument does not appear to be a particularly common one, but I wonder now why it isn’t made more often. One of the reoccurring arguments touted as a justification for Prop 8, as well as other prohibitions on gay marriage, is that marriage is uniquely designed to encourage responsible procreation, and that access to marriage should therefore only be granted where it will serve as a deterrent to reproducing accidentally outside of marriage. Marriage is only for straight people, the argument goes, because only straight people produce kids the old fashioned way, and the best way to raise kids that were produced the old fashioned way in the context of a marital relationship.

This argument is inadequate in that it provides no explanation for why kids that were not produced on accident are not also best raised in the context of a martial relationship. Many gay couples do, very purposefully, create and raise kids, and if kids are best raised by married couples, then it is pretty damned spiteful to order that those kids should be denied the benefit of married parents just so that straight couples who get pregnant are more likely to have a shotgun wedding.

Beyond being spiteful, prior Supreme Court decisions have repeatedly indicated that the objective itself is impermissible. In Trimble v. Gordon, 430 U.S. 762 (1977), the Supreme Court rejected the argument that a law prohibiting intestate succession of bastards was constitutionally permissible, because

[i]n a case like this, the Equal Protection Clause requires more than the mere incantation of a proper state purpose. No one disputes the appropriateness of Illinois’ concern with the family unit, perhaps the most fundamental social institution of our society. The flaw in the analysis lies elsewhere. As we said in Lucas, the constitutionality of this law “depends upon the character of the discrimination and its relation to legitimate legislative aims.” 427 U.S. at 504. The court below did not address the relation between § 12 and the promotion of legitimate family relationships, thus leaving the constitutional analysis incomplete. The same observation can be made about this Court’s decision in Labine, but that case does not stand alone. In subsequent decisions, we have expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.

Likewise in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), the Supreme Court refused to accept the argument that it is permissible to discriminate between legitimate and illegitimate children as a means of encouraging people to “shun illicit relations because the offspring [of those relationships] may not one day reap the benefits of workmen’s compensation.” 406 U.S. at 173. The Court found that the State’s interest in protecting “legitimate family relationships” may have been itself a legitimate objective, but it was not an end that could be promoted by inflicting hardship on those who happened to not be part of a traditional nuclear family arrangement:

[t]he status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent.

Almost all of the Supreme Court’s past opinions on distinctions based upon illegitimacy contain language that would be equally at home in the decision issued today by the 9th Circuit in Perry v. Brown. Gay couples are not responsible for the fact that straight people sometimes get knocked up — so why are they punished, and their kids forced to be illegitimate, on the chance that there could be a straight couple out there that would refuse to enter into any relationship that gay people were also allowed to enter? Punishing gay couples, and their children, by prohibiting them from entering into the contractual arrangement that the state has deemed the best for children to be raised in, does exactly what the Weber Court prohibited: it imposes disabilities on those who are not engaging in irresponsible procreation as a means of encouraging better behavior from those who are not being similarly responsible.

-Susan

But even if it’s not a surprising outcome, I am still relieved the decision did end up being as narrow a holding as could be managed. But the majority knew what it was doing, of course, and it did its best to carefully shoehorn Perry into the precedent set down in Romer v. Evans. If gay marriage absolutely has to go in front of the Supreme Court, well, then I guess I’m glad it’s going to be in the context of the 9th Circuit’s opinion here, rather than a potentially more damaging vehicle.

I did end up being pleasantly surprised and impressed by Judge Smith’s dissenting opinion, and I agreed with many of his points over those of the majority far more often than I would have expected. It was certainly more faithful to the concept of rational basis review, anyway, and if it weren’t for two of its ultimate conclusions, I might’ve agreed overall with the dissent’s holding rather than the majority’s.

But there is no possible way I could ever accept the Proponent’s argument that “gay marriage should be banned because because only straight people can get accidentally knocked up, and straight people that accidentally get knocked up might not want to get married if those gay people who can’t accidentally get knocked up are allowed to get married too” with anything resembling a straight face, prior 14th Amendment jurisprudence be damned. Smith’s version of rational basis review would require that courts accept this argument, on the grounds that the government is permitted to (1) use irrational animus as a means of carrying out (2) policies that have no coherent content beyond an empty sound bite. And that’s two bridges too far, for me.

As for the first point, Smith’s footnote 8 does try to distinguish Palmore v. Sidoti by claiming that animus is only prohibited as a means of carrying out a law where that means is based upon creating a suspect classification. But if animus is banned as an end in all cases — rational basis through strict scrutiny — then what could possibly be the constitutional argument for banning animus as a means only in the case of strict scrutiny, but permitting it in all other circumstances?

And for the second point, Smith may be on firmer constitutional standing. But whatever precedent may be, I can’t go along with the argument that a law counts as being “rationally related” to an alleged purpose just so long as a grammatically correct sentence can be formulated which purports to support that claim. When it comes to rational basis review, yes, courts are required to accept a very hefty does of harebrained legislative ideas, no matter how stupid or ridiculous those ideas might be in practice — but even the most properly deferential court should not be required to accept an argument that is, as the majority put it, lacking any basis “on which th[e] argument [c]ould be even conceivably plausible.”

So even if I am skeptical of the strategic soundness of forcing a gay rights case through the courts now, I ultimately agree with the legal analysis of the majority’s opinion. No, it’s not perfectly faithful to past models of rational basis review. But if anything, Perry v. Brown is just another chip off of the slowly eroding concept of strictly tiered classifications under the Fourteenth Amendment. The current law school outline version of the law, which places everything that’s not currently an announced suspect or quasi-suspect class into the same rational basis bucket, just doesn’t match the reality of what is happening in the courts and in society at large. After all, we’ve had, what, two cases before the Supreme Court now, in which a law has been challenged on the basis that it was motivated solely by animus against gay people? And after Perry, it’ll be three. In the context of Supreme Court cases which challenged legislative enactments based on animus towards a specific group, that’s a pretty high number.

And with that kind of pedigree, it’s hard to justify the claim that “homosexuals” is not a class that has been repeatedly subjected to improper legislative discrimination — and even if its not legally recognized as such under the Court’s current classification scheme, as a practical matter, it is plain that a law that makes a distinction on the basis of sexual orientation is one that that warrants an extra dose of skepticism from the judiciary.

-Susan

Unfortunately, I came away from the article a bit disappointed; although Sykes accurately summarizes some economic concerns that are theoretically raised by the ATS, there is close to no examination of actual corporate behavior. I was frustrated with its near total disconnect from any specific applications of the ATS, as only a single example from actual ATS litigation is used to illustrate the potential economic downsides of corporate liability: that of Talisman’s withdrawal from Sudan and replacement by Chinese corporations. Actual dollar figures associated with defending ATS suits, or total amounts of judgments or settlements that have been paid under ATS cases, are never brought up.

My major complaint would be that, because the article simply focuses on the theoretical costs caused by corporate liability under the ATS, with little or no evidence as to the actual costs that have been experienced in ATS suits, Sykes’ analysis is almost equally applicable to the question of multinational corporate liability in any situation, not just Alien Tort Statute case. In his article, Sykes identifies five general economic costs:

1. Litigation is expensive
2. This is a confusing area of the law, which means judges are likely to end up making decisions that are biased against big, faceless corporations
3. Allowing multinational corporations to be sued for allegedly bad things they have done can piss off foreign governments, either where the MNC is headquartered or where the bad acts took place
4. Allowing corporations with connections to the U.S. to be sued is harmful because it gives a competitive benefit to corporations that do not do business in the U.S., and so cannot be sued
5. Allowing corporations with U.S. connections to be sued will cause them to engage in expensive restructuring to create subsidiaries that have the competitive benefit of not being able to be sued in the U.S.

These costs are not really unique to the ATS context. It is not that any of these costs aren’t real, but Sykes never discusses how each of these general economic concerns is particularly applicable in the context of the Alien Tort Statute. For instance, although the first point is an important consideration for any type of litigation, the article does not provide any evidence that the costs of ATS litigation are more concerning than the costs associated with, say, products liability, or Title VII cases. Plus, as Sykes himself admits, a large proportion of corporate ATS cases feature up to a dozen different claims in addition to any ATS -based claim for relief. If the ATS didn’t exist, it doesn’t mean these all the ATS cases would cease to exist as well — just that they woudn’t have brought ATS claims. And, other than in a handful of high profile exceptions, the ATS portions of those cases don’t cause any significant increase in the overall litigation costs. As Sykes also admits, U.S. Courts are already concerned with the potential costs of baseless litigation, and have implemented doctrines intended to curtail the expenses associated with such cases. I am all in favor of Twombly’s heightened pleading standard applying to ATS suits, but the record of ATS litigation thus far — with an overwhelming majority of ATS cases being dismissed — suggests that this is already occurring, and that litigation costs in ATS suits are no higher than for any other given type of litigation.

As for the second point, regarding the risk of judicial bias against corporations, there is zero evidence that this is a cost particularly likely to occur in the context of ATS litigation. Given the existence of a single plaintiff victory at trial in corporate ATS cases — and perhaps a dozen settlements, many of which heavily favored the corporations — the record would suggest that ATS suits do not feature any problematic bias against corporate defendants.

Although the third potential cost identified by Sykes, that of foreign sovereign backlash, is a real threat posed by ATS litigation, the problem is one that arises from a separation of powers perspective, and analysis under a law and economics framework is less useful. The problem with the risk of Foreign Sovereign Backlash (“FSB,” because I’m too lazy to keep typing it out) under the ATS is that it can place the judiciary in the role of FSB-gatekeeper, when that role is Constitutionally assigned to other branches. Yes, FSB can be expensive — but the problem is not the expense itself, but which branch of government is entitled to decide to cause it. Foreign relations are not a straight forward cost-minimization exercise, and the Executive is free to make a foreign relations decision that is more economically expensive if it believes other U.S goals are better served in doing so. The concern about the risk of FSB arising from ATS litigation is not an economic concern, but rather a Constitutional one.

Sykes’ argument also fails to spend more than a quick footnote considering the possibility that there may be a FSB benefit to ATS suits. ATS cases can potentially benefit the Executive by minimizing the U.S. government’s role in punishing corporations that engage in human rights abuses. It allows such corporations to be penalized, but without requiring the elected branches to themselves specifically decide who to prosecute or accuse of violating international law. Although allowing individual foreign plaintiffs to make the decision to bring an ATS suit can and does cause FSB, requiring that the U.S. government itself specifically choose to bring claims of, say, genocide against a foreign state (and corporation) is likely to cause even more offense still. If the Executive wants to punish extraterritorial corporate human rights abuses (and with Koh at the legal helm, I think we can assume it does), there is a definite benefit in allowing plaintiffs to bring ATS suits against bad corporate actors, rather than requiring that the State Department be the one to do all the dirty work.

The fourth economic cost Sykes identifies is that “corporations subject to suit in the United States thus face potentially discriminatory liability standards, imposing the costs of litigation and any resulting judgments on them for alleged conduct that actual and potential competitors can undertake without fear of liability.”

The problem with this argument is that it literally argues that, from an economics perspective, it is better if U.S. corporations should not be liable for any torts under U.S. law, because non-U.S. corporations are not liable for theirs. As a result of the ATS, Sykes writes,

business opportunities are diverted to competitors that are not subject to suit in the United States. Not only does the U.S. corporation lose business, but business opportunities are captured by competitors who are not subject to liability for violations of customary international law. The competitor thus faces no more incentive to guard against violations of customary international law than would the U.S. corporation if it did not bear discriminatory liability – the likely impact on compliance with international law is nil. The only thing that has changed is the displacement of the U.S. corporation by a higher cost and thus less efficient competitor. Global economic welfare declines.

Sykes does qualify this statement by acknowledging that global economic welfare can be assisted through the existence of corporate liability, by deterring inefficient distortions in where corporations choose to invest funds. Still, this caveat does not quite sufficiently cover the objections to his argument. I think that Judge Posner, in his recent opinion in Flomo, probably put it best:

One of the amicus curiae briefs argues, seemingly not tongue in cheek, that corporations shouldn’t be liable under the Alien Tort Statute because that would be bad for business. That may seem both irrelevant and obvious; it is irrelevant, but not obvious. Businesses in countries that have and enforce laws against child labor are hurt by competition from businesses that employ child labor in countries in which employing children is condoned.

Again, a law and economics approach alone is not particularly beneficial in this context. It is not that a law and economics analysis is useless here, or that these questions should never be asked. But asking simply “what is the economic cost of prohibiting child labor?”, or “what is the cost of prohibiting slavery?” only goes so far. Although there is not quite a unanimous opinion on the matter, in as much as the world has ever reached a global consensus on anything, there is now a fairly universal agreement that activities like slavery and genocide ought to be prohibited, no matter the economic cost caused by that prohibition. As such, the more useful question is what is the most efficient way of deterring these prohibited behaviors, not whether or not such activities should be deterred at all.

A related cost disadvantage Sykes identifies here is the reputation costs suffered by U.S. firms that are sued for foreign human rights abuses. True, this is a real cost suffered by corporations like Chiquita and Pfizer, but is it one that argues against a regime corporate liability under the ATS? If anything, it shows how ATS suits have the potential of benefiting shareholders, by giving them relevant information about a corporation’s foreign management practices. Sykes is essentially arguing here that, absent the ATS, U.S. consumers and shareholders would have less awareness of the fact that certain corporations may be assisting foreign regimes in carrying out genocide or other violations of international law, and therefore the ATS imposes a “cost” on these corporations by raising that awareness. It is true that companies suffer damage to their corporate reputations as a result of, say, enrolling marginalized children into drug trials without regard for their consent, but any “economic cost” from such reputation damage may very well be outweighed by the economic benefit of making it harder for corporations to deceive consumers and shareholders about information that is relevant to their consumption and investment choices.

[I've realized after finishing this post that I forgot to discuss the fifth cost identified by Sykes -- the costs incurred by companies that have to spin off subsidiaries to try and immunize themselves from human rights abuses by their overseas operations. I may get back to edit this later, but to a large extent, while I agree with Sykes' assessment of the costs imposed by the ATS here, I do have a problem with the framing. If corporations are engaging in inefficient restructuring in order to avoid liability for human rights abuses, that is an argument in favor of reforming corporate law to remove corporations' incentives to restructure as a means of avoiding liability for their bad acts. It is not an argument in favor of simply permitting the bad acts.]

While the five potential costs of ATS identified by Sykes are real, there is very little consideration of whether or not these costs are outweighed by the accompanying benefits. In places, Sykes does in fact acknowledge that the real question is not whether prohibiting genocide or other violations of international law is bad for business, but whether the ATS is an efficient method for deterring such activities. However — with the exception of his discussion on aiding and abetting liability — Sykes never fully engages with this question; he does, for instances, explain why imposing aiding and abetting liability is not likely to be effective at encouraging foreign sovereigns not to randomly kill their own citizens, but there is never any comparison between the relatively costs of achieving this goal via aiding & abetting liability vs. alternative methods of deterrence. Yes, there may be costs to ATS litigation, but the fact that there are costs is not by itself a sufficient argument against corporate liability, as it would seem that the United States does in fact consider deterring corporate human rights abuses to be of at least some marginal utility. In which case, if it turns out to be the case the ATS’s deterrence value is not sufficiently high to offset the costs of its enforcement, what other schemes exist that are capable of advancing these goals in a more cost effective manner?

Just saying that the ATS imposes “economic costs” is meaningless; of course it imposes costs, and those costs are likely similar to the costs imposed by other corporate liability regimes. The relevant questions here are instead (1) what are the actual dollar figures of those costs? Not in the abstract; if the ATS is so damned expenses, surely someone can pull up some supportable figures demonstrating it; (2) what is gained in exchange? Looking at the costs of the ATS is only part of the equation, there needs to also be an examination of its benefits to compare against the costs; and, (3) are there methods of deterring corporate human rights abuses more efficient than the ATS?

If the answer to this is simply that “the cost of deterring corporate human rights abuses is outweighed by the benefit of allowing corporations to engage in human rights abuses,” then come out and say so. But all Sykes has given is some abstract reasons as to why the ATS may have certain economic costs — without attempting to quantify what those costs are in reality, and without any reference to alternative schemes that might be more efficient in achieving the goals that are promoted by ATS supporters.

As noted above, Sykes does a fair job of discussing these issues with respect to aiding & abetting liability under the ATS — and he is completely right. Aiding and abetting liability under the ATS is of a dubious pedigree both from a legal perspective and an economics one. I just wish he’d gone on to make a comparison of the relative efficiencies between a regime of aiding and abetting liability and other potential methods, however.

For instance, if the goal is to encourage companies to invest in regimes that abide by certain minimum human rights standards, this would probably be more effectively carried out through direct federal statute, something analogous to ITAR or the anti-terrorism statutes that Chiquita got nailed with. That would allow the U.S. government to more directly tailor the specific prohibitions to match its foreign relations goals, and (well, theoretically) reduce the litigation costs associated with enforcement via the ATS. Trying to regulate the allocation of foreign investment through a scheme enforced via private litigation is obviously clumsy; direct instructions from the fed as to what foreign investment is deemed problematic from a human rights perspective is a much cleaner and easier scheme to execute.

On the other hand, as discussed above, accomplishing the ATS’ objectives through direct federal regulation would eliminate one major advantage provided by the ATS scheme: the fact that the U.S. government is not required to take sides. If a scheme to prohibit corporations from engaging in human rights abuses abroad was established through federal laws, the U.S. government would be required to specifically choose to prosecute any violation that occurred, or specifically name foreign human rights abusers that companies were discouraged from investing in. Despite all the complaints about the ATS’s “foreign relations costs,” it cannot be assumed offhand that the U.S.’s foreign relations would be better served by a scheme that requires the U.S. executive and legislative branches to deliberately and intentionally accuse foreign sovereigns of humans rights abuses.

This post has pretty much definitely gone on for too long, but there are two final points I wanted to briefly discuss. Throughout his paper, I think that, to a large degree, Sykes underestimates both (1) the extent to which it is the nerve centers of corporations, and not the local actors, which initiate corporate human rights abuses abroad; and (2) the comparative power of the corporations against the local developing governments. To be fair, I too am only aware of anecdotal evidence with regard to these arguments, one way or another. And Talisman’s involvement in Sudan, for instance, might have been without its directors’ knowledge, and carried out by the government of Sudan rather than through any corporate initiative. But on the other hand, Chiquita’s payments to the AUC and Shell Nigeria’s collaboration with the government in regards to the Ogoni were not decisions made by isolated foreign outposts that had no contact with or direction from company execs. There is clearly high-level executive complicity at play in many of the worst examples of corporate human rights abuses. Moreover, Sykes’ blithe assumption that MNCs have no ability to promote or deter human rights abuses by local government officials — because “[i]nvestors who interfere in any substantial way with the government’s preferred course of action can be booted out and [r]eplaced with others” — seems entirely at odds with actual experience. In many cases, MNCs operating in developing nations possess a near-monopoly status, and directors carefully develop close, err, “financial” ties to local government authorities, giving them considerable influence and decision making authority. See, e.g., faxes showing that the Nigerian government repeatedly expressed to Shell “concern at the limited availability of foreign capital”, and gave ongoing assurances that it would do whatever was in its power to please Shell officials, during the course of the Ogoni massacre. The idea that corporations in developing nations are operating in some state of near perfect competition with no ability to make demands on host governments is not an assumption that can be made without any supporting evidence.

In order to give an accurate analysis from a law and economics perspective of the costs and benefits of ATS litigation, what is needed — and what so far has been lacking in ATS literature — is an empirical understanding of the actual incentives corporations have to engage in or to assist foreign human rights abuses. Once we can get a better grasp on that, it would be much easier to answer the question of whether the Alien Tort Statute is the right the method of altering those incentives.

-Susan

The so-called “Sea Shepherd” activists — Geoffrey Tuxworth, Simon Peterffy and Glen Pendlebury — boarded the Japanese whaling vessel Shonan Maru II early Sunday morning off the southwest coast of western Australia.

….

The three men are members of an Australian environmental organization called Forest Rescue Australia and their mission was designed to prevent the Japanese whaler from tailing an anti-whaling flagship belonging to the Sea Shepherd Conservation Society.

Because this all took place about 16 miles off of the Australian coast, the men boarded the ship and were apprehended by the Japanese vessel within Australia’s contiguous zone. There now seems to be a dispute between the Sea Shepherd organization and the Australian government over the significance of this fact — with the Sea Shepherds believing, while the Australian government is stuck in the position of awkwardly noting that the three men who boarded the vessel are subject only to Japanese laws.

Although the Australian government did eventually work through diplomatic channels to arrange for the release of the three activists, its position was that Australia had no particular claims to jurisdiction over the incident, beyond the fact it involved Australian citizens:

[Federal Attorney-General Nicola Roxon] said consular officials were attempting to contact the men, and the Government’s priority was to ensure their safety and well-being, and return to Australia.
“It is a difficult situation. This incident happened outside our territorial waters, in our exclusive economic zone,” she said.
“But that doesn’t give us rights for Australian law to automatically apply.
“In fact, our advice is that Japanese law will apply because a Japanese boat is the one that’s been boarded.”

The Sea Shepherds do not agree with the Gillard Government’s view:

Capt [Paul] Watson said he had not expected the men to be taken to Japan and charged.

“Considering it was within the 24 miles contiguous zone, which is where the Australian immigration and Customs has absolute authority, we didn’t think the Australian government would allow the Japanese to take Australian citizens out of that area.”

He accused Attorney-General Nicola Roxon of “not doing her homework”, adding the vessel was only 16 miles off the beach.

“This is not some ordinary boat that was boarded, this is a criminal boat supporting a criminal operation.”

Unfortunately for the Sea Shepherds, however, their interpretation of international law is a bit misguided. The contiguous zone’s actual significance is pretty negligible in most contexts, and completely negligible here. The contiguous zone is the band of ocean territory just beyond a nation’s territorial waters, and overlapping with its EEZ. States are permitted to extend this zone up to 24 miles from their coast; this means, in the typical circumstance, a nation’s contiguous zone is a 12 mile band that begins 12 miles out at sea, where the state’s territorial sea ends.

Under Article 33 of UNCLOS,

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

And that is pretty much the extent of the contiguous zone’s importance, when it comes to a coastal state’s jurisdiction over foreign ships. Moreover, as the Shonan Maru II is not itself a whaling ship or a research ship — it’s basically a bodyguard for the whaling ships, engaged in counter-harassment measures against the Sea Shepherds — it was not even taking any actions which could have subjected it to Australian regulations at the time the Forest Rescue men boarded it. As for Australian criminal laws (even presuming that the Japanese could possibly have committed any violations), such laws are only enforceable in the contiguous zone to the extent that the enforcement was related to violations that occurred or were about to occur within Australia’s territorial sea. Here, all of the events concerned took place outside of territorial waters, and so Australia’s extended enforcement jurisdiction is inapplicable.

As such, if any criminal acts occurred with regard to the boarding of the Shonan Maru, the crimes were probably committed by the Forest Rescue activists rather than the Japanese whalers. In fact, an argument can even be made that, by forcibly boarding a Japanese vessel outside of Australian territorial waters with the intent of detaining it, or at least of diverting its course, the activists were engaging in an act of piracy, pursuant to UNCLOS Article 101. Although the Japanese whalers are hardly innocent when it comes to breaches of international law, in this case, it is the Sea Shepherds that are in the wrong.

-Susan

Which is why Iran’s recently renewed threats to close down trade through the Strait of Hormuz are risky for all concerned. Risky for the rest of the world, because any disruption would contain a severe economic toll. And risky for Iran, because if it ever actually did attempt to shut down the Strait, it would intensely piss off literally the entire world. So, while Iran periodically makes noises about taking such a move, the odds of it actually carrying out on its threats are minimal. Nevertheless, given the costs involved, the risk, however small, is taken extremely seriously by the rest of the world.

But ignoring the reality of the situation for a moment, and pretending as if international law actually possessed the power to effect state’s actions in the Gulf, would Iran actually have the legal right to carry out any of its threats?

For once, international law has a straightforward answer: no. Any attempt by Iran to close the Strait of Hormuz would be unambiguously illegal; the shipping lanes through the Strait of Hormuz, as laid out by the International Maritime Organization, lay within the territorial sea of Oman. Although the 12-mile territorial seas of Iran and Oman overlap at the narrowest points of the Strait, the deepest waters — and thus the shipping channels — lay to the south, within Oman’s territorial waters. As such, any military action by Iran to shut down shipping through Hormuz would inevitably impinge on Oman’s sovereign rights.

But Iran’s legal rights over the Strait of Hormuz vis-à-vis the rest of the world, and ignoring Oman’s sovereignty concerns, are a slightly more complicated question, although even there Iran’s claims are tenuous. The precise extent of Iran’s legal authority, however, differs based upon whether one applies the doctrine of innocent passage or transit passage to the Strait.

Both doctrines concern the passage of ships (as well as planes) through a nation’s territorial sea, which extends up to 12 miles from a state’s coast. The doctrine of innocent passage, which bears a greater claim to customary international law status, applies throughout all the territorial seas of the world. The concept of transit passage, in contrast, applies solely to those sections of territorial seas provide an exclusive link between two larger bodies of waters — i.e., straits.

The right of innocent passage, laid out in Articles 17 – 26 of the United Nations Convention on the Law of the Sea (“UNCLOS”), protects the right of ships in transit to pass through another nation’s territorial sea, subject to certain regulations that may be imposed by the sovereign. Passage is considered innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State.” Innocent passage, however, can be subject to certain conditions imposed by the sovereign state, and may in fact be suspended temporarily in times of emergency.

In contrast, transit passage, which is regulated by Articles 37 – 44 of UNCLOS, is nonsuspendable, and not limited to innocent passage. The conditions that may be imposed by sovereign states are limited, and not subject to any real teeth. So long as a ship is not engaged in any nontransit activities and complying with certain traffic and safety measures, coastal States must permit ships to pass through their territorial seas.

So if the Strait of Hormuz is governed by transit passage, Iran’s legal ability to take any action to impede transport through the strait, even against an unfriendly foreign nation’s warships, is more or less nil. If, on the other hand, the regime of innocent passage applies, Iran has a fair bit more wiggle room to work with. Particularly in a situation where hostilities are shading towards war and the use of force, where a coastal state’s territorial waters governed by a regime of innocent passage, that state has a non-negligible claim to a right to enforce extensive regulatory control over the area, up to and including an ongoing suspension of all transit rights.

The question then is whether the Strait of Hormuz is subject to transit passage or not. Textually, it would seem clear that the Strait of Hormuz falls with Article 37′s scope, as it is a “strait[] which [is] used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.” Thus, under UNCLOS’s text, a strait like the Strait of Hormuz — which connects the Persian Gulf’s EEZ to the Strait of Oman’s EEZ, as well as the high seas beyond — is subject to transit passage. So why doesn’t that settle the question for good as to what transit regime applies here?

Well, for one, neither the U.S. nor Iran have ever actually gotten around to ratifying UNCLOS. Since neither state has ever entered the treaty, its terms can only apply if the terms are also obligatory under customary international law. And there, opinions differ, with no few authorities holding that the general right of transit passage has yet to be established outside of treaty-conferred obligations.

On the other side of that argument is the United States, which, despite its somewhat contentious and complicated relationship with UNCLOS, has long held that the bulk of UNCLOS’s provisions are merely a codification of customary international law. This includes UNCLOS’s provisions regarding transit passage, as U.S. authorities have repeatedly asserted these norms to be a component of CIL:

…the United States…particularly rejects the assertions that the…right of transit passage through straits used for international navigation, as articulated in the [LOS] Convention, are contractual rights and not codification of existing customs or established usage. The regimes of…transit passage, as reflected in the Convention, are clearly based on customary practice of long standing and reflects the balance of rights and interests among all States, regardless of whether they have signed or ratified the Convention… (Diplomatic Note of August 17, 1987, to the Democratic and Popular Republic of Algeria (intermediary for Iran)).

And,

…the regime [of transit passage] applies not only in or over the waters overlapped by territorial seas but also throughout the strait and in its approaches, including areas of the territorial sea that are overlapped. The Strait of Hormuz provides a case in point: although the area of overlap of the territorial seas of Iran and Oman is relatively small, the regime of transit passage applies throughout the strait as well as in its approaches including areas of the Omani and Iranian territorial seas not overlapped by the other. (Navy JAG, telegram 061630Z June 1998).

In contrast, Iran has consistently maintained the opposite view, holding that transit passage only exists among states that have agreed to submit to that regime via ratification of an international agreement. Although Iran has not ratified UNCLOS, it has signed the convention, and with its signature it submitted the following declaration:

Notwithstanding the intended character of the Convention being one of general application and of law making nature, certain of its provisions are merely product of quid pro quo which do not necessarily purport to codify the existing customs or established usage (practice) regarded as having an obligatory character. Therefore, it seems natural and in harmony with article 34 of the 1969 Vienna Convention on the Law of Treaties, that only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein.

In other words, Iran viewed Article 38 of UNCLOS, concerning the right of transit passage through straits used for international navigation, to be an exclusively treaty-based obligation, and not one of customary international law. As Iran never got around to ratifying UNCLOS, the implication would be that Iran does not in fact believe itself to have acceded to any such treaty obligation. This position has been confirmed by numerous assertions by Iranian officials in the decades prior to and since UNCLOS’s entry into force.

Iran is not alone in this belief about transit passage’s status under international law, either. Oman, motivated by a similar interest in the Strait of Hormuz, also filed a declaration along with both its signature to and ratification of UNCLOS, which questioned the CIL status of transit passage, and also suggested that Oman did not intend to adopt the obligations of transit passage conferred by treaty, either. Its ratification statement indicated that it only recognized and agreed to compliance with provisions concerning the regime of innocent passage — and not that of transit passage. As such, Oman’s ratification was subject to the condition that “innocent passage is guaranteed to warships through Omani territorial waters, subject to prior permission.”

Although these declarations have never actually been enforced or acted upon by either Oman or Iran, making the bulk of state practice with regards to the Strait of Hormuz to be in conformity with the existence of transit passage through the Strait, it does not appear that either coastal state believes itself to be legally bound by a customary international law of transit passage, either. Moreover, state practice and opinio juris elsewhere in the world likewise fails to unambiguously confirm the existence of a customary international law of transit passage. As such, it cannot be automatically assumed that Iran does not possess a right to limit transit through the Strait of Hormuz, at least to the extent permitted by the regime of innocent passage.

While the practical effect of transit passage’s precise status under international law will likely (definitely) be minimal in shaping events in the Persian Gulf in the days and weeks to come, parties on both sides of the dispute will be likely to invoke the application of international law in their rhetoric, as they seek to imbue their military actions with the color of law. Still, as the Strait of Hormuz does not belong to Iran alone, and Iran’s sovereign claims over the Strait are limited by Oman’s own claims to its territorial seas, any action taken by Iran to close the entirety of the Strait will necessarily be an act of force prohibited by the UN Charter, and unquestionably a violation of international law.

-Susan

This tip comes courtesy of a law student who, earlier this week, sent me an email applying for an internship position. I can only assume that he, like a lot of people when faced with a software registration prompt, typed in a ridiculous name on a whim, and then never gave it a second thought.

But unfortunately for this law student, when a Word document is viewed inside of Microsoft Office, the Author tag is fairly prominently displayed:

Poor dude. I’m guessing he doesn’t realize he’s been going around submitting a resume that claims to be written by Pretty Princess. (And I can only wonder how many times over the years I have made this exact same mistake myself…)

In case you’re wondering, you can find out how to change the author name for Word documents over here.

-Susan

This was immediately seized upon as evidence of the homosexual agenda in action, with opponents of McDowell touting it as proof that “gay rights” are trampling religious freedoms across the land. McDowell’s defenders, on the other hand, described his decision to remove the student as appropriate, believing that the student’s behavior was disruptive and hostile to other students. The school board initially chose to suspend McDowell for one day without pay as a result of the incident, but later reversed its decision.

The matter had died away after that. Until last Friday, when the student’s mother, represented by the Thomas More Legal Center, a “public interest law firm dedicated to the defense and promotion of the religious freedom of Christians”, filed suit against McDowell and the school district over the incident, alleging that her sons’ Constitutional rights were violated. A copy of the complaint can be found here.

The purpose of the suit isn’t the plaintiff’s material gain, but rather a chance to get a court order prohibiting public schools from restricting students’ rights to make anti-gay statements while at school. Richard Thompson, president of the Thomas More Law Center, had stated that the purpose of the litigation is to defend “religious opposition to homosexuality”:

“This case points out the outrageous way in which homosexual activists have turned our public schools into indoctrination centers,” said Thompson. He said by utilizing the tyranny of political correctness, homosexual activists “are seeking to eradicate all religious and moral opposition to their agenda.”

Despite the media coverage surrounding the case, however, the plaintiff in Glowacki v. Howell Public School District is not actually asserting any claims based directly upon freedom of religion. Rather than invoking the Free Exercise Clause, the plaintiff is instead alleging (1) that the defendants deprived students of their First Amendment rights to free speech by punishing Glowacki for expressing his refusal to accept homosexuality, and (2) that the Defendants violated the Equal Protection Clause of the Fourteenth Amendment “[b]y favoring speech that approves of and promotes homosexuality over Plaintiffs’ religious speech.” (The EPC claim is based on an infringement of Glowacki’s fundamental Free Speech rights rather than his group membership, as “people who have a religious viewpoint critical of homosexuality” is not a class that can invoke the court’s heightened scrutiny.)

The reason Glowacki’s case is a free speech case and not a free exercise case is obvious: his claims are far more compelling when brought under the rubric of free speech than they are when presented as religious freedom claims. In places, the Complaint does in fact invoke the specter of religious freedom as support of his claim for relief, but they are the weakest portions of Glowacki’s pleading. In short, Glowacki’s case, to the extent that it is based on religious freedoms, is that, as a Catholic, he has “a duty and obligation to defend [his] faith in public, including a duty to speak the truth about homosexuality” (Complaint, at para. 46) — that ‘truth’ being that “homosexual acts [are] acts of grave depravity, [and] that homosexual acts are intrinsically disordered” (Complaint, at para. 45).

But this is not a “duty and obligation” that the Constitution recognizes. There is no special Constitutional protection for a religious belief that “compels” you to affirm your disapproval of your fellow classmates every time the subject of their identity is mentioned. For instance, someone who claimed his religious beliefs compelled him to believe that Jews deserved to be exterminated would not thereby acquire a right to announce such a belief every time the subject of the Holocaust came up in class.

And so Glowacki focuses on free speech, not free exercise. But although Glowacki’s free speech claims are legitimate under the facts he has alleged, his Complaint is still pretty appalling in many respects. For instance, it describes the school district’s anti-bullying campaign as “a day in which activists exploit the tragic suicidal deaths of homosexual teenagers to promote acceptance of homosexuality in the public schools.” (Complaint, at 26). It also refers to the “pro-gay agenda” seven times, and comes off sounding rather paranoid in the process. Worse still, it repeatedly describes the suicides of kids who were bullied due to their perceived sexual orientation as “teenagers who committed suicide because they were homosexual. ” (Id., at 39). The Complaint continues to win itself no favors when it alleges that “the purpose of the ‘anti-bullying day’” is “to shift the blame for the destructive lifestyle of homosexuals to those who believe it is wrong and immoral”. In other words: gay students deserve to be harassed, and any harassment they receive due to their sexual orientation is their own fault for being gay.

But as unpalatable as the Complaint is, assuming everything it says as true, Glowacki likely does have a case. That is a pretty big assumption to start from, however; although both Glowacki and McDowell do seem to agree on some of the central facts in the dispute, the parties are diametrically opposed as to what the general tone of the exchange was, or what the intentions of the parties were. And here, the tone of the exchange is everything.

Rather than breaking new legal territory, I expect this will ultimately be a heavily fact-based case. Comparing the claims of the two sides, however, gives an indication as to where this suit is headed:

Plaintiff Glowacki’s Story:

47. On October 20, 2010, during his sixth hour economic class in which Plaintiff D.K.G. was a student, Defendant McDowell explained to the students that it was the national “anti-bullying” day and that the students were going to watch a movie about teenagers who committed suicide because they were homosexual.
48. At the beginning of the instruction and in front of the entire class, Defendant McDowell confronted a female student who was wearing a Confederate flag belt buckle. Defendant McDowell directed the student to remove the article of clothing because he considered it offensive. The female student had worn this belt and buckle to class on several prior occasions without receiving a reprimand.
49. In light of Defendant McDowell’s opening remarks to the student about “antibullying” day and tolerance, Plaintiff D.K.G. raised his hand and asked Defendant McDowell why it was permissible to display a rainbow flag, which is offensive to some people, but not a Confederate flag, which Defendant McDowell found offensive.
50. Offended by the question, Defendant McDowell curtly responded by stating that the rainbow flag represents the gay community, but the Confederate flag “represents killing people and hanging and skinning people alive,” or words to that effect.
51. Defendant McDowell then asked Plaintiff D.K.G. whether he “supported” or “accepted gays,” or words to that effect. Plaintiff D.K.G. responded by stating that his religion does not accept homosexuality and that he could not condone that behavior. Angered by the response, Defendant McDowell told Plaintiff D.K.G. that his religion was “wrong,” or words to that effect, and ordered Plaintiff D.K.G. to leave his classroom under threat of suspension.
52. After ordering Plaintiff D.K.G. to leave the classroom, Defendant McDowell asked the remainder of the class whether anyone else did not accept homosexuality. A student raised his hand, and Defendant McDowell ordered him out of the classroom as well.

Defendant McDowell’s Story:

At the beginning of my 6th hour students asked what the “Tyler’s Army” t-shirts were about. This led to the beginning of a discussion about anti-bullying. It was a discussion about not bullying anyone due to race, ethnicity, gender, sexual orientation, or social status. One female student entered the class wearing a Confederate Flag belt buckle. This student knows that I have not allowed Confederate Flags in my class. She sits in the front row. I asked her to remove the belt buckle and she did so without incident. At this point, a male student raised his hand and asked why she had to remove the belt buckle. I explained that the Confederate Flag is often seen as a symbol of discrimination. The student then said “well Gays get to fly their rainbow flag.” This was a disruption to the classroom environment. I explained the rainbow flag is not a part of the discussion and that it hasn’t been associated with lynchings, mob violence, or discrimination in the way that the Confederate Flag has been. The student then said, “I don’t accept Gays.” Obviously this was an inappropriate thing to blurt out in class and had no place in the discussion. I told him he could not say that in class that it was inappropriate. He asked, “Why? I don’t accept Gays. It is against my religion. I am Catholic.” I said that was fine it was against his religion but that that statement was inappropriate to say in class. I became concerned at this time as there were students in the class that his comment would affect in an adverse way. There were at least ten students in the class wearing purple on that day. I related the situation to discrimination against African-Americans. I explained to the class that just as you can’t say, “I don’t accept blacks” in class you can’t say “I don’t accept Gays” in class. You can have whatever religious beliefs you want but there are statements that are inappropriate to say in class. I suspended him from class that day and wrote up a referral for unacceptable behavior. Another male student walked in at that moment and said loudly, “well I don’t accept Gays either can I leave.” I said, “yes get out.” Both students were insubordinate in class and caused a disruption of the class.

The accounts do overlap, but the differences between them are determinative. Under Glowacki’s version of the facts, he wins. Under McDowell’s version, he was in the right. So whose story is true?

It is not clear one way or another, at this stage of the proceedings. However — and while I am aware that my biases are now shining through bright and clear here — I have severe doubts about Glowacki’s ability to prove his version of events. Glowacki’s story just doesn’t pass the smell test: a kid that that speaks up to defend a classmate’s prerogative to display the Confederate flag in class is not a kid that then will follow up by opposing gay rights by demurely stating that “he could not condone that behavior.” In fact, the Complaint completely dodges away from identifying the actual language used by Glowacki in the exchange, leaving the student’s own words vague and unspecified. But note that the Complaint portray McDowell’s words as if they were direct quotes — only to then hide behind the disclaimer that McDowell’s statement might actually have just been “words to that effect,” rather than the actual words used. Meanwhile, the Complaint only paraphrases Glowacki’s own statements, thereby framing him in as inoffensive a manner as possible.

Although I do think it seems likely that McDowell overreacted in dismissing Glowacki from the classroom, my bet is that Glowacki was in fact being disruptive at the time, and was not merely expressing his religious views in a respectful fashion. It was Glowacki, remember, that initiated the exchange when he, unprompted, decided to equate a gay rights symbol with the Confederate flag. As a native Georgian, I am well aware that individual perceptions of the stars and bars can and do vary, but even the most charitable part of me is very skeptical that there is an innocent justification for a kid from Michigan to be defending the right to display the Confederate flag. Moreover, Confederate flags were not a neutral symbol to this student body — a year prior, a group of students at Howell had used school computers to create a racist facebook group that used a confederate flag as its icon:

The group’s Web page displayed an image of the Confederate flag along with this message:

“If you hate a certain type of anybody black, white, pink, yellow or polka dot (you) should join. This shows you are a rebel and proud of it.”

Given this background, I’d say Glowacki’s got an uphill battle in proving that his statements were as innocent and non-disruptive as he claims.

And the precise words Glowacki used — and the tone in which he said them — matters here, a lot. For instance, several unsubstantiated reports about the incident have stated that other students in the class reported Glowacki saying “those faggots” during the course of the exchange. The reports state that these statements were made only to classmates, however. But if, for example, McDowell had actually heard a student make statements to that effect, then the case would be open and shut. McDowell would have been on firm ground in removing Glowacki from the classroom, as schools are permitted to suppress vulgar and obscene speech, which “those faggots” would very arguably fall under. See Bethel School District v. Fraser (1986).

But assuming vulgar language was not used, the most obviously applicable precedent to this case is the Supreme Court’s decision in Morse v. Frederick (2007), a.k.a. the “bong hits 4 jesus” case. In Morse, the school was found to have a compelling interest in suppressing student speech that promoted illegal drug use. In Glowacki, the school could argue instead that its compelling interest was in suppressing speech that promotes bullying — a particular pertinent interest, given the recent attention bullying and teen suicide have received in the media in the past few years.

And discouraging bullying based on sexual orientation has already been found to be not just a compelling interest for school officials, but rather an affirmative obligation. In Flores v. Morgan Hill (2003), the 9th Circuit found that school officials were liable for failing to make any attempt to prevent persistent bullying of students that were perceived by their peers to be gay — and moreover, those school officials were not entitled to qualified immunity. Glowacki’s legal arguments, if correct, would therefore put public schools between a rock and a hard place; they would be required to protect students not only from the anti-gay animus of their classmates, but would also be required to protect students’ rights to express anti-gay animus in class.

Due to the similarities in the school official’s interests in both cases, Morse would seem to be highly determinative when it comes to Glowacki’s case. Re-wording Alito’s concurrence in Morse to change the compelling interest from discouraging drug use to discouraging bullying, you get a straight-forward defense of McDowell’s actions:

[D]ue to the special features of the school environment, school officials must have greater authority to intervene before speech [that declares gays to be "unacceptable"] leads to violence [and bullying]. And, in most cases, Tinker‘s “substantial disruption” standard permits school officials to step in before actual violence erupts.

Speech advocating [the ostracizing and disapproval of gay students] poses a threat to student safety that is just as serious, if not always as immediately obvious…. I therefore conclude that the public schools may ban speech advocating [anti-gay animus, in a disruptive fashion]. But I regard such regulation as standing at the far reaches of what the First Amendment permits

This is not to say that any speech that is pro-drug or anti-gay can be suppressed under the Morse framework; a paper advocating legalization of marijuana or arguing that Catholicism does not condone non-procreative sex could not be prohibited due to safety concerns.

This is why Glowacki v. McDowell will ultimately be decided on the facts, not the law. If Glowacki was being belligerent and hostile when he declared that gay rights were offensive to him, McDowell was justified in eventually removing him from the classroom under Morse when he continued to state that “I do not accept gays.” If instead Glowacki’s expression of religious belief was made in a non-disruptive manner, and particularly if his statement was made in response to a direct question from the teacher soliciting his views, then Glowacki should prevail.

So facts are everything, here. But luckily, as this all took place in a classroom, there should at least be quite a few eye-witnesses available to testify. I hope the Thomas More Law Center is looking forward to deposing a couple dozen teenagers — I bet that will be just loads of fun.

-Susan

4. Speculative Warfare (circa 2008 – present)

Because ultra-realistic FPS games are a marketing time bomb, and because of the awkward gameplay moments that will inevitably arise when your setting involves U.S. forces fighting against a real world enemy, ultrarealistic FPS games have now moved on to the fourth and present-day era: speculative warfare. Like the games of the two previous waves , speculative warfare games feature wars between real nations and real human organizations. However, instead of recreating past or current wars, these games are set in the present or near future, and involve hypothetical conflicts between existent nations.

As always, Russia is the common denominator. Even with the Cold War two decades dead, video games have no shortage of creativity when it comes to finding ways to, once again, make Russia the villain. Just like how the historical reenactment games rewrote history to make Soviets the bad guys, speculative warfare games warp modern day international relations into unlikely scenarios where Russia is the evil invading force. For instance, in Battlefield: Bad Company 1 (2008) and 2 (2010), the player is thrown into the midst of a modern day war between the Russian Federation and the United States, with little time wasted on explaining how such a conflict could ever come to pass. In contrast, Modern Warfare 1 (2007), 2 (2009), and 3 (forthcoming – 2011) at least try to give some plausibility to their story lines, by inventing the rebel Russian Ultranationalist Party to explain how Russia suddenly becomes an active world threat again. (Although the rumor mill falsely claimed MW2 had been banned in Russia, the developers did take out a scene allowing players to shoot civilians in the Moscow airport. Although shooting Russian civilians was deemed too much for the Russian market, simply having Russia be a villain is not a problem.)

Still other games go for the hybrid Russian villain, by mixing elements of historical military fears with modern day anxieties, and team Russia up with a more likely antagonist nation. For instance, in Frontlines: Fuel of War (2008), you have the Western Nations fighting against the “Red Star Alliance” — the mighty pseudo-superpower duo of Russia and China. Likewise, Rogue Warrior (2008) also uses Russia, but teams it up with North Korea and a nuclear weapons smuggling program.

Having Russia be the villain for speculative warfare plots opened the door for other nations to become the hypothetical villain. Russian markets never seem to mind when Hollywood or U.S. game developers choose them to be the bad guy, and the trope is so common as to be beneath notice by any diplomatic instruments. But Russia is sui generis, when it comes to the lack of controversy caused by casting it into the villain’s role. Having other nations fill in for the bad guy is not nearly so straightforward. It is not hard to see why — having major U.S. and other Western nation game developers declare that they can foresee ostensibly friendly or neutral nations as likely enemies in a U.S. military conflict necessarily carries some uncomfortable implications.

Although in the U.S. these games have reached the point where they are no longer remarkable, in other nations such speculative warfare games are making governments and bureaucratic agencies extremely uncomfortable. Some are more extreme than others — although no other state has gone as far as Venezuela, which in 2010 put a blanket ban on all games where the objective is to shoot people, regardless who is cast as bad guy. But other states have objected to many of the ultrarealistic and speculative warfare games. Japan, for instance, has regulations “regarding the portrayal of existing people and countries”, while China regularly bans any video game that it deems harmful to its “sovereignty and territorial integrity.” And Tom Clancy’s Ghost Recon AW 2 was banned in the Mexican state of Chihuahua due to its unflattering depiction of the state, while Ghost Recon 2 was banned in South Korea for its depiction of a war between itself and North Korea.

The movie industry has a lot more experience with the delicate diplomacy of bad guy nationality, but video games are now wading in those same waters. In a world where games are marketed globally, the economic repercussions for choosing the wrong nation to be the bad guy can be huge — particularly where that nation is China. This was recently illustrated by the game Homefront (2011), which is undoubtedly the new standard bearer when it comes to video games depicting hypothetical political conflicts. The game’s primary villain is not only a real country, but a real person — the future dictator Kim Jong-un, who now rules over a unified Korea. The game begins with depictions of Kim Jong-il’s death, and then goes on to show Kim Jong-un — Kim Jong-il’s real-world heir apparent — launches an invasion of the United States.

However, when production on the game began, Korea was not in the picture at all. Originally, Homefront’s bad guy was to be an imperialist China. However, at some point, the game’s developers made the decision that the Chinese market was too valuable to risk alienating, and made a unified Korea the game’s antagonist. Of course, this was not likely to please South Korea. And although South Korea is not exactly a slouch when it comes to the video game market, the makers of Homefront seem to have accepted this trade off, as the game did not even attempt to get approval by the South Korean government for distribution there.

Incidentally, some states had problems with the use of real nations in Homefront, regardless of whether the specific bad guy was a unified Korea or the People’s Liberation Army, Japan’s video game ratings board, the Computer Entertainment Rating Organization (CERO), required that Homefront’s developers make several changes to the game before it could be granted approval:

“[Spike, the creator of Homefront,] removed the image of Kim Jong-il from Homefront’s opening movie sequence. It has changed all instances “deemed malicious to an existing person” (that is, Kim Jong-il) to be referred to as “Northern Leader.” And it has changed all instances “deemed malicious to an existing country” (that is, North Korea) to be referred to as “A Certain Country to the North.”

THQ, the developer of Homefront, has tried to claim that North Korea and Kim Jong-un were ultimately chosen to be the game’s villains for purely narrative reasons, not real world political concerns. They even came up with the thin cover story that the switch was made because China just wasn’t scary enough to be a good villain: “Everything you buy is made in China. It’s all friendly. Everything’s made there, from games, to every toy to everything. So they’re not that scary.”

But I’m not buying it. China — a political, economic, and ideological rival of the United States — makes a much more logical choice for video game bad guy. For video game purposes, China is the new Russia — it is the only potential superpower to rival the United States, and it just happens to be filled with a bunch of commies. As such, in deciding who should be the hypothetical emerging threat to America in Homefront, it would be harder to pick a better target than China. The idea of tiny North Korea invading and taking over large swaths of American territory is just too far-fetched to be scary; the game’s premise requires too great of a suspension of disbelief. True, North Korea is scary, in a crazy rabid kind of way, but for plot purposes, they are more likely to be the ones indiscriminately launching nukes, rather than the ones launching full scale invasions of powerful foreign nations.

But even if China-as-the-villain makes more narrative sense, it doesn’t make much business sense. In light of statements from THQ’s executives, it is clear that the real reason behind the switch was not that China is just too gosh-darned friendly:

“[Danny] Bilson recalls getting a word of caution from some of the personnel at his company. ‘The guys in our Chinese office said: Did you know that everybody on the exec team will be banned from coming into China for the rest of your lives? They were afraid the ministry of culture was going to wipe us out.’”

China does not have a problem out right banning video games that are offensive to bureaucratic sensibilities, either. One of the earliest of speculative warfare games was Project I.G.I. 2 (2003), which featured a fictional Chinese general as the villain. It was promptly banned in China:

The State Press and Publication Administration (SPPA) said the game has violated China’s gaming regulations that prohibit introduction and publication of games that hurt China’s national dignity and interests.

All copies of the game, said SPPA sources, are illegal and will be recovered. The game’s publishers, producers and sellers in the country will be punished according to law.

And yet, China does not object to all video games in which China plays the role of bad guy. If there is a logic behind which games are and are not “offensive to China’s national dignity,” it is not obvious. If anything, this only makes the question of which villain to use a harder one for game developers — as they cannot be sure in advance what plots are likely to have their games blocked off from a massive segment of potential consumers. Operation Flashpoint: Dragon Rising (2009) does not seem to have sparked any acrimonious reaction from China, even though it is premised upon the U.S. and Russia, having been forced to team up by treaty obligations, working together to expel Chinese invaders from an Alaskan island. In OF:DR, China is depicted as being economically embattled, politically unstable, and forced into raiding Russian territories for oil — not exactly flattering. And yet, China’s reaction to such games appears to have progressed since Project I.G.I. 2, and no official condemnation was made.

Nor did China object to Dragon Rising’s sequel, Operation Flashpoint: Red River, in which players take the role of U.S. soldiers fighting off the PLA’s invasion of Tajikistan. But even though China had no obvious political reaction to the game, Tajikistan reacted strongly to it, interpreting the game as a political attack. The most outspoken Tajik politician felt that the game was an attempt to sabotage Tajikistan’s 2013 elections, stating that “This computer game is a result of sick fantasy by Tajikistan’s foes, who dream that our country will remain in the abyss of constant conflicts.” The game ultimately being banned in Tajikistan. Although Tajikistan is not a major market, and its loss is probably not a noticeable loss to the game’s bottom line, it does illustrate the risk game makers take when they produce hypothetical warfare games.

Of course, even if the Operation Flashpoint games did not engender a reaction, China has not just ignored the political content of military FPS games being developed overseas. It appears China has instead adopted a “if you can’t beat ‘em, join ‘em” approach. In May 2011, it was reported that the People’s Liberation Army was developing its own military FPS , called “Glorious Revolution,” in which players shoot American soldiers. The news made hardly a ripple in the United States, and was apparently not a source of much concern. But the game’s existence is politically interesting — this was not just some game made by a private developer, but a game made by the Chinese military itself. It appears that the game was not made for military training purposes, but rather was intended to be a substitute to counter other FPS games (most likely made by Western states) which are apparently popular with the PLA troops:

While it’s been developed primarily as a PR exercise, the game is also targeting the popularity of “foreign” titles played on PLA bases, “which may have different military values and mislead Chinese army officers and soldiers” according to the PLA Daily, the army’s official newspaper.

So Glorious Revolution is unquestionably intended to be political in character, which makes the fact that America is chosen as the antagonist even more interesting. The game is not intended to prepare soldiers for a reality in which they will fight U.S. soldiers, however, but rather is intended to counter the prevailing ideology promoted in most FPS games today. Glorious Revolution’s villain is the American military not because China expects its soldiers to actually encounter Americans on the battlefield, but because it is a direct contrast to all of the other games PLA soldiers play, where they are overwhelmingly required to play the role of an American soldier.

Unambiguously political video games are still a small minority of games, but as Glorious Revolution shows (as did Syrian made Under Ash and Hezbollah’s Special Force), many states have begun venturing into the development of FPS games for political ends. South Korea has had at least one such politically motivated game as well, in “Save Dokdo,” a computer game that became popular in 2006 during the height of Japanese-South Korean tensions over the disputed territory of Dokdo. The game allowed players to defend the contested Pacific island and fight off waves of Japanese invaders, and it’s popularity was due in no small part to nationalistic interests.

If anything, the United States has been extremely restrained when it comes to creation of war games with a consciously political angle. Although the U.S. military has developed training/recruiting games such as America’s Army, the purpose of these games has not been to make blatant political statements. If anything, the U.S. military has attempted to sanitize the potential inflammatory character of such games by focusing on hyper-realism — providing the excuse that these games are just depicting “reality,” and are not predicting, advocating, or anticipating any future developments.

This is not to say that U.S. and Western made games are not promoting an agenda, but that their developers are largely unconscious of the effect their own biases and worldviews have. Games that feature U.S. military protagonists, such as Call of Duty, have been fairly criticized for uncritically adopting “theme[s] of U.S. militarism, [and] the idea that the U.S. faces ruthless and evil enemies in the post-9/11 world, enemies it must absolutely destroy to protect itself and the American people.” This is not because game developers have an overt political motivation, but rather because the theme of U.S. militarism is such a comfortable narrative in today’s age that it can be adopted without provoking comment or raising questions from mainstream sources. These same basic story lines and narratives have been concurrently adopted in other popular media so thoroughly that consumers already have an internal model for how games like Call of Duty or Army of 2 should progress — and for game developers, it makes business sense to adopt the narrative that is the most broadly shared among consumers.

But simply because a theme is common and widespread does not mean it is a neutral, objective depiction of reality. Given the nature of the medium, military FPS games will always have an underlying ideology, whether it is intended or not.

Because wars are not fought in the abstract. If an FPS game is going to attempt to have a story line — and almost all of the games made in the past decade do — it will necessarily have to address the question of why the player is being asked to kill the villain. Where the opposing forces are real world groups or nations, there is no possible means of answering that question without injecting a heavy dose of subjective political commentary. This requirement of subjective commentary is even more prominent where the depicted war is a hypothetical one, and the plot cannot hide behind the excuse that it is “just repeating the facts.”

Military FPS games are inherently political. When they are set on present-day earth, they unavoidably implicate real world political and diplomatic relationships, and require that the game provide a subjective explanation for why killing the enemy is necessary and why it is justified. For the most part, the effect of these games on political processes is small — these are just games, after all. But for the video game industry, decisions about the political content of FPS games has a very real financial impact, one that will only continue to grow in importance as the gamer market becomes increasingly globalized.

-Susan (with special thanks to editor Calvin Fisher!)

The Maya Archaeology Initiative's logo

The latest victim of Kellogg’s trademark overreach is the Maya Archaeology Initiative (MAI), a nonprofit that defends and promotes the study of indigenous Maya culture. Kellogg’s is opposing registration of MAI’s logo, claiming that its inclusion of a toucan is an illegal infringement on Kellogg’s Toucan Sam character.

The Maya Archaeology Initiative’s logo features a stylized keel-billed toucan in front of a Mayan pyramid.

In contrast, the Froot Loops mascot, Toucan Sam, is an anthropomorphic blue bird that has no immediately recognizable analog in nature, except possibly some kind of dodo bird/blueberry hybrid. The only toucan species that Toucan Sam bears even a plausible resemblance to is the plate-billed mountain toucan, which is a different genus all together from the more commonly depicted toco toucan or keel-billed toucan. Literally the only thing Toucan Sam has in common with the MAI’s logo is that in both cases the bird depicted is intended to be some kind of toucan.

Toucan Sam

Nevertheless, Kellogg’s has filed a Notice of Opposition to MAI’s registration of its toucan-and-pyramid logo, alleging that

Applicant’s TOUCAN BIRD DESIGN mark so resembles Opposer’s TOUCAN marks as to be likely, when applied to the goods of Opposer, including Opposer’s wide range of licensed goods, including clothing, to cause confusion or mistake or to deceive purchasers resulting in damage and detriment of Opposer and its reputation. In this regard, it should be noted that Opposer’s TOUCAN SAM Marks are frequently displayed in connection with depictions of a jungle theme including Mayan temples and surrounding vegetation. Thus, use of the Mayan pyramid in the Applicant’s TOUCAN BIRD DESIGNS is likely to further strengthen the public’s connection of Applicant’s design with Opposer’s famous TOUCAN equities.

Kellogg’s isn’t just claiming that it owns toucans. It especially owns toucans displayed in Mayan temples and vegetation!

In a July 19, 2011 letter to MAI, prior to filing its Notice of Opposition,

Kellogg corporate counsel David Herdman wrote: “Because the applied for goods of your client’s application are in the clothing category and Kellogg has extensively licensed our TOUCAN SAM character for the exact goods, we are concerned about both consumer confusion and a dilution of our strong equity in these marks.”
The Kellogg letter also said the company is concerned that the initiative’s logo uses Mayan imagery, “given that our character is frequently depicted in that setting.”

Kellogg’s does not really have any particular beef with MAI — and given the amount of publicity this attack has received, I would guess that Kellogg’s is regretting ever picking this fight. But MAI is only the latest target in Kellogg’s two decade history of groundlessly prosecuting any toucan that is used to sell something other than Froot Loops. Here is a very incomplete list of other trademarks that Toucan Sam has threatened or initigated legal action against, alleging that the marks would mislead consumers into believing the goods were related to Froot Loops:

• GrowTech, Inc., a pruning and shearers manufacturer:

• Toucan International: 

• Fruitiki Fruit Bars:

• Jungle Joy, energy bars and drinks:

• TwoCan Talk:

• U Toucan Paint, Acrylic and watercolor lessons:

• The SnakHut:

• Family Dollar Stores of Michigan, Inc.:

• Amazona’s Rainforest Products:

• Johnny Cakes:

• Toucan Industries, Inc., maker of accessories (wallets, handbags, backpacks, and luggage):

• Tucan Coffee Estates and Roasters, Ltd.: 

• Toucan Willie’s Restaurant and Bar:

• Coco Loco Espresso: 

• U-Too-Can, maker of children’s toys:

• Toucan Markers, writing utensils:

• The Daiquiri Factory:

• Pacific Packaging Concepts:

• Toucan Charlie’s, restaurant:

• Oroverde Energy Drinks:

• Tampico Beverages, fruit-flavored beverages:

• Tukaiz Communications, prerecorded children’s music:

• Tucan Tina’s, Restaurant services: 

• The Toucan Bar and Grill: 

• Tucan Farms:

• Dos Hombres, Inc., restaurant services: 

• Island Spring:

• Toucan’s Sportz Bar & Grill: 

• The Toucan, Ltd., Bar and Grill:

• Basic, leather goods:

• Riegel Textile Corporation:

• Toucan, Computer Hardware (workmark)
• Toucan, Cordaire & Partners Company Inc. (workmark)
• TÜKHAN athletic apparel (wordmark)
• Tucano Urbano, motorcycle padlocks (wordmark)
• Toucan Treasures, game machines (wordmark)
• Tukan Tukan, distilled spirits (wordmark)
• Schucan, general foods (wordmark)
• Toucan, scanners (wordmark)
• Caffe Toucano, Inc., coffee (wordmark)
• Toucan Toes, candy variety (wordmark)
• Toucon Mon, clothing (wordmark)
• Toucan Chocolates (wordmark)
• Toucan’s Place, Inc. (wordmark)
• The Toucans, a Seattle-based steel drum band
• Green Jellÿ, a comedy rock band that satirically featured Toucan Sam on an album cover

But legally, Kellogg’s doesn’t have a leg to stand on. When Kellogg’s picks these fights, it is not relying on the accuracy of its reading of the law, but rather it is counting on its size and entrenched legal resources to outweigh the strength of its opponents legal arguments. Even though legal precedent is solidly against it, Kellogg’s has, for two decades, maintained a steady persecution of all other businesses whose names or logos reference members of family Ramphastidae.

That Kellogg’s legal arguments are bunk is not mere speculation. The Sixth Circuit has already held that Kellogg’s overreaching claims of infringement are legally unsupported. In 2003, Kellogg’s tried to block a trademark registration by Toucan Golf, a golfing equipment company. The court found that Kellogg’s opposition to the rival toucan mark was unjustified, as “confusion [between the marks] was highly unlikely, principally because Kellogg is in the business of selling cereal, whereas TGI is in the business of selling putters.” Kellogg Co. v. Toucan Golf, Inc., 337 F.3d 616, 620 (6th Cir. 2003). The court did agree that Kellogg’s had “establish[ed] that Toucan Sam is visually recognizable by an overwhelming cross-section of American consumers. Coupling that with his distinctiveness, Toucan Sam is a very strong mark.” But then Kellog tried to argue that its toucan mark went so far as to encompass golf equipment, on the basis of a 1982 commercial:

Kellogg asserts before this Court that it has sufficiently entered the golf equipment industry. In support of this claim, Kellogg presents a catalog, wherein it offers for sale golf balls and golf shirts on which is imprinted the picture of Toucan Sam. Moreover, Kellogg has presented a mass-marketed 1982 animated television advertisement wherein Toucan Sam is portrayed soliciting his Froot Loops on a golf course, and interacting with a golf-playing bear. Kellogg claims these materials indicate that the Toucan Sam marks are related not only to the manufacture of breakfast cereal, but to the golf equipment industry as well.

The court promptly told Kellogg to STFU: “Kellogg has not cornered the market on all potential uses of the common bird name ‘toucan’ in commerce, only on uses of ‘Toucan Sam.’”

Toucan Golf's GolfBird vs. Toucan Sam

Not only are other uses of the wordmark ‘toucan’ not a likely source of confusion for Froot Loops, but there is also no Lanham Act violation where another product happens to have a design mark with a toucan in it. The Sixth Circuit held, with respect to the GolfBird logo,

“GolfBird resembles a real toucan. She has the look and proportions of a toucan that one would encounter in the wild. Toucan Sam is anthropomorphic, with a discolored, misshaped beak. His body type is not the same as that of a real toucan; and he smiles and has several other human features. We therefore find no similarity between Toucan Sam and GolfBird.”

Everything from the Toucan Golf case sounds extremely familiar to Kellogg’s current claims against MAI, in which Kellogg asserts that the Mayan imagery of the MAI logo increases the confusion, because Toucan Sam frequently appears with Mayan imagery. As with the claims in Toucan Golf that Toucan Sam is associaterd with golf clubs, Kellogg’s claims that Toucan Sam is associated by consumers with Mayan imagery are nothing more than invented bullshit. Worse still, the only “Mayan imagery” Toucan Sam has ever walked in front of is fairly offensive:

[MAI's attorney, Mott] said she had looked at Kellogg’s websites in an effort to explore this claim. The only imagery she could find that was even “vaguely Mayan,” she said, was on the Froot Loops site, which includes a number of “Adventure” games set in various locales. Generic pyramids do appear in one of those, she noted (this one), but there doesn’t appear to be anything distinctively Mayan about them. (Unless the Mayans put Froot Loops on their pyramids, I think she has to be right. Even if they did, that might pose other problems for Kellogg’s claim.) Worse, the only quasi-Maya depicted there is not depicted favorably:

“Disturbingly, the villain in this Kellogg Adventure and its related games — and the only character who is of color [other than the birds] — is a ‘witch doctor’ with a cackling screech. Apparently, he is supposed to be a Maya. At best, this is culturally insensitive. I would characterize it as a demeaning caricature of an advanced and ancient civilization about which your game developers know nothing.”

Kellogg then promptly removed the video, saying “As a company long committed to diversity and inclusion and responsible marketing, Kellogg takes this concern very seriously.” Niiiice, Kellogg’s. Way to rely on the old “I’m-sorry-if-you-were-offended” non-apology, for explaining your use of witch doctors in children’s advertising.

Sadly, despite the baselessness of Kellogg’s claims, MAI has little choice but to attempt to settle with Kellogg’s, and relinquish its legal right to continued use of its logo. That’s because actually defending against Kellogg’s frivolous claims will easily cost north of $25,000, which is a lot for a tiny non-profit to spend on defending a principle. Even though Kellogg’s claims are legally and factually unsupportable, it will probably succeed in forcing MAI to stand down.

Looking over Kellogg’s trademark prosecution record, the only conclusion one can draw is that Kellogg’s attorneys are a bunch of bullies. Moreover, Kellogg’s longstanding pattern of abuse and intimidation when it comes to trademark litigation demonstrates that it is a company policy to prosecute all other uses of toucan in commerce, regardless of the fact that a circuit court has already soundly rejected their fanciful claims to the contrary. But despite Kellogg’s trigger happy litigation tactics, Kellogg’s indisputably does not have a right to exclude all others from using depictions of toucans in commerce — and Kellogg’s attempts to enforce such a nonexistent right ought to get them sanctioned by the court the next time they are dumb enough to try and bring a Toucan Sam infringement claim to trial.

Update: As of November 4, 2011, Kellogg’s withdrew its opposition to the trademark. Apparently once its scare tactic proved ineffective, Kellogg’s was not willing to try out the strength of its claims on the merits.

-Susan