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

Of course, my frustration was a bit hypocritical, as I loved the snooty rhetoric when I was a first-year associate. I thought my motions and briefs were poetry. In reality, they mostly indulged my own ego or allowed an outlet for my emotions about a given case.

But I’m glad that I learned the lesson during my clerkship that superfluous language is generally ill-advised, as judges seem to be growing less and less patient with it. Several judges (including my former judge) have issued opinions harumphing about that kind of stuff, but I think Judge Dale Fisher of the U.S. District Court in the Southern District of California really hit the nail on the head in a recent hearing:

… I don’t know why lawyers do this, and there’s a lot of them in the room so take heed, all of you, language like failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty are not only unpersuasive, they’re somewhat annoying. I don’t have time for rhetoric. I’m really, really busy. Why anyone would want this job, I don’t know…

But in any event, it’s just – I don’t know whether you stay up nights trying to think of clever phrases, but trust me, no judge that I’ve ever spoken to has ever said, Boy, can that guy turn a phrase. They only say, Boy, why didn’t he get to the point. So, please, in future pleadings, remember that. …

… In addition to that, I’ve been around awhile both in practice and on the bench, so I suspect I’ve seen a few more cases than you, and really, it’s not all that staggering and it’s not all that great a magnitude, so when your experience and mine differ, it just takes all of the punch out of those comments.

To make matters even worse, Counsel, your statement that the government failed to make any effort to preserve the documents is simply false. And your statements in your papers so often go beyond the bounds of zealous advocacy that I have to say your papers had very little persuasive value. In fact, as I was trying to check some of the references you made to deposition testimony, I looked at it three or four times because I thought I must be searching for the wrong page because the pages you were citing to had oftentimes no relationship to the proposition you were citing them for. You started off extremely poorly as I started reading the papers, and I had little confidence in anything you had to say as I went through them.

Bam. Just a little reminder that even the best writers should save the rhetoric for blog comments sometimes.  Motions practice is not a place for a release of emotion, for intellectual masturbation, or for a demonstration of writing prowess. Legal writing is only a means to an end.

-Michael

As I recall it, the practice when I was a law clerk is that the reporter of decisions drafted the syllabus, for review by the authoring justice. Moreover, a long syllabus doesn’t require the difficult editing decisions that a short paragraph would require.

Touché. (Note that this approach conflicts with the publicly advertised explanation, which says only that the syllabus was “prepared by the Reporter of Decisions.”)

It’s no surprise that ultra-conservative writer Ed Whelan doesn’t like ultra-liberal law professor Erwin Chemerinsky. But a recent post misses the mark. Whelan first attacks Chemerinsky for making a “crazy” suggestion that the Supreme Court should justify its cert. denials. Whelan might be kind of right given the volume of such denials each year (although he seems to overlook that a clerk produces a memo on most every case). Yet the real weak spot of Whelan’s analysis is his second attack:

Nearly as bad is Chemerinsky’s idea that “the Court should hire a ‘clear writer’ who would boil each decision down to a single paragraph that would be released along with the ruling.” I don’t doubt that the author of the majority opinion could often do a better job setting forth clearly what the holding of the case is. But why should the justices delegate to a Court staffer the often difficult and controversial task of summarizing the ruling?

The justices, of course, already do delegate to a Court staffer “the often difficult and controversial task of summarizing the ruling.” Mr. Whelan, meet the Reporter of Decisions of the Supreme Court. Among other things, the Reporter of Decisions is tasked with preparing a syllabus that goes at the top of most Supreme Court opinions. The syllabus has one purpose (you guessed it): to summarize the decision. See, e.g., United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 (1906) (“[The syllabus] is simply the work of the reporter, [who] gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.”).

The role of the Reporter of Decisions might sound like an odd bit of trivia, but it shouldn’t be to anyone who reads a Supreme Court opinion every once in a while. The syllabus is stuck right there at the top of the first page, along with an explanation of who prepared it.

So basically all Chemerinsky is asking for is a shorter, clearer syllabus. Not so crazy at all.

-Michael

That deal isn’t available to law students. That’s because admission to most state bars require potential attorneys to graduate from a law school accredited by the American Bar Association. And the ABA doesn’t accredit foreign law schools. So that’s that. (Well, except for those Americans that go to another country for law school and simply stay in that country after graduation.)

But should that really be the end of the story? Putting aside all the fluffy nonsense about the “increasing globalization” of law, foreign law schools present a possible solution to two perceived problems in the legal market right now: (1) the lack of attorneys for under-served (read: poor) populations and (2) the high cost of law school in general. Of course, these problems are related: students carrying high debt loads out of law school simply can’t afford to move to Barrow and set up shop.

The ABA has considered and declined to accredit foreign law schools one time before. Reading between the lines, the earlier refusal seemed to have stemmed from a fear that foreign lawyers would flood the market.

Yet that concern seems inconsistent with the ABA’s willingness to accept American law schools of all shapes and sizes, with seemingly no concern for “flooding the market.” And interestingly, neither the commenters nor the ABA seemed to focus on American students going abroad to receive their degree. Instead, the jingoistic fear was that foreign students would go to foreign schools and then come to America. Why don’t we want to open a door for our own students to enjoy a legal education while immersed in a different culture?

What’s more, for American law students, a good number of foreign law schools should have the advantage over the newbie American ones, given that foreign law schools often have well-established pedigrees and strong institutional support. Contrast that with the lower-tier American institutions that struggle to get by. Wouldn’t we rather have new lawyers coming out of UCL Law or McGill Law than University of North Texas at Dallas School of Law? Can’t we all concede that there are several Australian schools that could instantly produce some of the best international lawyers in the States? As a bonus, accrediting foreign law schools might result in more lawyers for a very particular under-served community: immigrants.

Some worry that allowing foreign entry into the ABA could result in a general decline in the quality of legal education. Such a concern could be easily addressed by requiring the ABA  to impose the same strict standards for accreditation on foreign schools as it does on domestic ones. If no foreign school passed muster, so be it.

In sum, why aren’t we giving this a closer look? What is the ABA afraid of? A cheaper, more interesting learning experience shouldn’t be limited to the wandering undergrad. It’s time for law students to get their shot, too.

-Michael

“The uncontroverted portion of the record reveals that the use of force was prompted by Plaintiff’s refusal to follow direct orders to enter his cell because he was upset that he did not receive a sufficient number of sandwiches.”

The lesson here is simple: never deny a man his grilled cheese sandwich.

-Michael

Right now, the only people excited about the upcoming Supreme Court argument (and ultimate decision) in Kiobel v. Royal Dutch Petroleum are international law nerds. At first glance, the case presents issues only a mother scholar could love:

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

But even though that sounds extraordinarily technical, the facts of the case actually might provide fodder for some explosive campaign rhetoric.

At bottom, Kiobel could be thought to confront two fundamental issues: (1) the rights of aliens to enjoy certain protections in U.S. courts; and (2) the accountability of corporations for acts that caused injury. Those issues touch upon some raw feelings, driven by xenophobia, anti-corporatism, and general distrust of the Supreme Court. Either way the case goes, it’s likely to stir intense political feelings:

• If the court rules that corporations may not be held liable under the Alien Tort Statute, we’re likely to see a mini-replay of the Citizens United furor. The decision would fit neatly into the narrative that the Roberts court cares more about the interests of corporations than individuals. I can already imagine President Obama giving a speech about the Court’s unwillingness to place limits on the acts of corporations, whether those limits come in the form of campaign spending law, basic human rights laws, or otherwise.
• If the court rules that corporations may be held liable under the Alien Tort Statute, then Republicans could use this case as another example of how “those people” (i.e., aliens, foreigners, what have you) have too many rights in this country. Launching into his best “they-terk-er-jerbs” speech, the Republican candidate could use Kiobel to condemn how the government has become more interested in protecting the interests of foreign citizens, rather than protecting the interests of small business owners, family farmers, apple pie bakers, etc. Then again, Arizona v. United States might provide a better platform for anti-immigrant rants than Kiobel.
• If the court simply punts and says that the Alien Tort Statute does not apply extraterritorially, I don’t think anybody will care. Some people will scream about judicial activism, others will applaud the court’s judicial restraint. For its part, the Alien Tort Statute will be dead, squashed like a roach under the jackboot of judicial fuddyduddyness.

Personally, I think it’d be kind of nice to see candidates sparring on things of substance (like Kiobel) rather than spitting the same ‘ole sound bites. But that’s probably too much to ask for.

-Michael

Blogging is supposed to be fun. In a perfect world, here’s what would happen: you post something interesting and insightful up for the world to see, everyone compliments you on your incredible intelligence, and you can be happy that you added something useful to the world. In the real world, here’s what often happens instead: you post something empty (or perhaps something insightful that turns out to be wrong), anonymous internet trolls leave angry comments eviscerating your work, and you leave wishing you had spent all that time you invested with a stiff drink rather than wasting it on your crappy blog post.

These problems can only get worse when people write about things falling outside their traditional areas of expertise. Susan and I, for instance, write about anything that catches our attention for a moment, which may be something we each know very little about. Even the title of our blog acknowledges the broad sweep of what we talk about here. As a result, we sometimes stumble off track and screw things up.

Recognizing I’m not an expert on many subject matters I write about here, I always try to do two things: (a) acknowledge when I’m wrong, if someone tells me; and (b) never write a post in a heavy-handed, “why doesn’t this person already know this” kind of way.  (I’ll admit there have been exceptions to this rule.)

The importance of a bit of humility in blogging is nicely illustrated by a recent blog post from law professor qua pop culture legal icon Jonathan Turley. The post excoriates Justices Thomas and Scalia for their recent dissenting opinion in a habeas case, Maples v. Thomas.  As it turns out, Professor Turley’s bluster seems to be based on a fundamental misunderstanding of the decision.

[A digression to explain the case. The Maples case presents a procedural issue only a criminal nut could love: what constitutes "cause" sufficient to excuse procedural default? SCOTUSBlog's Plain English column explains it well:

When he first challenged the constitutionality of his death sentence at the state level, Maples thought (as he later told courts) that he had “won the lottery” because he was represented by two lawyers from a prestigious New York law firm.  Unfortunately for Maples, after his New York lawyers filed his brief in the state trial court but before the court issued a decision ruling against him, both of those lawyers left the firm for other jobs, without notifying the court.  So when the court mailed the decision to the lawyers, the mailroom at the New York firm simply returned the unopened envelopes to the court (marked “Returned to Sender”).  As a result, Maples missed his chance to appeal the court’s ruling, which in turn led federal courts to reject his constitutional claims on the ground that they were procedurally defaulted – that is, that he had not given state courts a chance to consider them.

Ok, now back to the law professor's post.]

The Court determined that Maples’lawyers had abandoned him, providing cause for his procedural default. Scalia and Thomas dissented. This, Turley says, is deplorable:

Scalia dismisses the confusion and lack of involvement of the attorneys who tried to retrieve Maples’ procedural rights. However, once again, procedural requirements must be tempered by some notion of basic justice and fairness. The jurisprudence of these justices appear to be impenetrable by such values. It is the triumph of procedure over justice.

Trouble is, Scalia never once concluded that abandonment is insufficient to establish cause to overcome procedural default. In fact, Scalia expressly agreed “that a habeas petitioner’s procedural default may be excused when it is attributable to abandonment by his attorney.” Scalia dissented because of a factual disagreement with the majority’s conclusion that Maples had been left without counsel. In Scalia’s view, Maples was still represented by the firm of Sullivan and Cromwell as a whole and by a few other individual attorneys who had also represented him. Thus, there was no “abandonment,” but only attorney error. Basic attorney error is something long-recognized as insufficient to establish cause. Scalia’s opinion closes by noting that Maples’case could therefore provide sufficient cause only if the Court undid its own case law and made all attorney error sufficient to establish cause.  (It is this final explanation that Professor Turley seems to take out of context.)

Scalia’s fine factual distinction may be weak to many, but the point is that he does not reject abandonment as a grounds for relief. He does not insist that procedure triumphs over justice in every case. Professor Turley seems to have overlooked this subtle but important distinction.

I flag all this as a cautionary tale. Blogging is often sold as a no-lose situation, especially for practitioners looking to draw in clients by flashing their intelligence. But blogging is a difficult and dangerous undertaking. Even the best sometimes misread cases or misunderstand doctrine. And when that happens in a blog post, there’s nowhere to hide. The wolves come out out of the shadows to pounce. There is blood. Things get messy. Keep that in mind when you sit down at your keyboard with plans to show the world how smart you are.

…Now go ahead and tell me all the ways I’m wrong.

-Michael

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