A Timeline of Events Leading up to Timor-Leste’s ICJ Claim Against Australia

Last week, the International Court of Justice heard three days of argument concerning Timor-Leste’s pending request for provisional measures in Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). The case was brought by Timor-Leste following Australia’s execution of a search warrant at the office of Timor-Leste’s Canberra-based attorney. Australia claimed that the warrant was appropriately issued for national security purposes, and used it to obtain extensive electronic and paper files concerning Timor-Leste’s pending arbitration against Australia before a Hague tribunal. In that arbitration, Timor-Leste is seeking to overturn a 2007 treaty between Australia and Timor-Leste, as a result of Australia’s espionage on Timor-Leste’s internal communications during the course of negotiations.

Australia claims that it was justified in seizing Timor-Leste’s legal files because Timor-Leste’s evidence of Australia’s espionage was provided by a retired Australian spy. That spy, dubbed “Officer X,” informed Timor-Leste of the 2004 bugging operation as a result of his belief that the surveillance had been conducted for improper commercial purposes, rather than national security interests.

It is a complicated and messy situation, both legally and politically, but the significance of Australia’s seizure of Timor-Leste’s legal files, as well as Australia’s prior espionage against Timor-Leste’s government, can only be understood in the context of the history of the past treaty negotiations between the two countries. To give some background for future posts concerning the legal claims being raised by Timor-Leste and Australia, provided here is a timeline of events leading up to the recent case before the ICJ.

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How Corporate Law Invented the Doctrine of Specific Jurisdiction, or Why Sovereignty Plays No Role in Specific Jurisdiction

This week, the Supreme Court issued its decision in Daimler AG v. Bauman, holding that a U.S. District Court in California does not have personal jurisdiction over a German corporation to hear a foreign tort claim brought by Argentinian plaintiffs, even when that corporation has U.S. subsidiaries that do frequent business in California and can be said to be “at home” in California. Actually, the Court went much further than that: not only does the U.S. District Court in the Northern District of California not have jurisdiction to hear the claim against Daimler, the Court’s decision leaves the strong implication that neither would any other court in the U.S., whether state or federal. In Bauman, the Court was forced to assume that Daimler’s U.S. subsidiaries – who are incorporated in or have a principal place of business in New Jersey and Delaware –  were “at home” in California. Even then, the Court concluded that no jurisdiction over Daimler existed. Since bringing suit in a state where Daimler’s subsidiaries were “at home” was not sufficient to confer jurisdiction, the Bauman plaintiffs’ claims would apparently fail no matter where in the U.S. it had been brought.

What is also of particular interest in Bauman, though, is the majority opinion’s relatively detailed recap of the history of general jurisdiction and specific jurisdiction. In doing so, the Court takes pains to portray Bauman as the natural and predictable progeny of the Court’s 1945 decision in International Shoe Co. v. Washington, as well as an extension of its more recent decisions in J. McIntyre Machinery, Ltd. v. Nicastro (2011) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). The Court’s decision reaffirms that, post-International Shoe, general jurisdiction has become the red-headed stepchild of the Supreme Court’s personal jurisdiction jurisprudence: yes, it does exist, but it’s not particularly significant, and whenever possible we’re going to try to focus on specific jurisdiction instead.

But Bauman’s history of personal jurisdiction neglects one very significant part of the story: the origins of specific jurisdiction. Although Bauman claims that, post-International Shoe, “specific jurisdiction has been cut loose from Pennoyer’s sway,” this metaphor mistakenly assumes that the two were ever pinned together in the first place. Specific jurisdiction was not derived from Pennoyer, nor from common law conceptions of general jurisdiction. Specific jurisdiction is instead the bastard child of corporate law and the Full Faith and Credit Clause, first born out of state legislatures’ needs to regulate the interstate activities of corporate entities, and later transformed by federal courts into a constitutional due process doctrine which imposed federal limits on state regulation of commerce. See, e.g., International Harvester Co. of America v. Kentucky, 234 US 579 (1914); and Whitaker v. Macfadden Publications, Inc., 70 App.D.C. 165 (1939).

Today’s judicial doctrine of specific jurisdiction was created as a statutory scheme to ensure that corporations could be sued even when they were acted outside of the state in which they were incorporated. Well over a century later, International Shoe adopted the doctrine, jettisoned its statutory origins, and announced that it was now a constitutional basis for regulating the reach of state courts via the Due Process clause of the Fourteenth Amendment. Unsurprisingly, the resulting legal concept is neither seamless nor entirely internally coherent. Although International Shoe attempted to shoehorn specific jurisdiction into the Court’s pre-existing framework of personal jurisdiction, but personal jurisdiction’s doctrinal lineage is very different from that of specific jurisdiction. Personal jurisdiction, as an expression of a state’s inherent sovereign authority, is a creature of international law. As result of this mismatch between jurisdictional concepts, nearly 70 years after International Shoe, the Supreme Court is still grappling today with how to resolve this basic conflict between the competing sovereignty-based and due process-based regimes of personal jurisdiction.

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Armor for the Zombie Apocalypse

As some of you may have noticed, The View From LL2 has been on hiatus for the past few months as a result of some conflicts with its contributors’ other commitments. Although Michael must unfortunately retain his status as blogger emeritus, I am now able to resume blogging, and look forward to catching up on all the exciting recent developments on obscure jurisdictional provisions of international law.

I am hoping to kick things back up this weekend with some updates on the Supreme Court’s recent decision in Daimler AG v. Bauman, but in lieu of legal blogging at the moment, here’s a follow up to my armor for lawyers and armor for cats: a suit of armor for survivors of the zombie apocalypse, made out of bottle caps and pop tabs. Sure, maybe it wouldn’t stand up against a sword or arrow, but it’s more than good enough to repel a zombie bite. And it’s a heck of a lot lighter than steel.

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Zimmerman’s Acquittal, and the Coming Civil Suit

George Zimmerman was acquitted in the killing of Trayvon Martin — a not wholly surprising result, but by no means an inevitable one. From what one can conclude about the jury’s deliberations, with their apparent focus on the elements of manslaughter, the jury wasn’t sold on Zimmerman’s self-defense claim, but they weren’t wholly buying some part of the manslaughter charge.

But the system worked in this case, or at least it worked as well as the system can ever be expected to. Zimmerman had to face trial for his decision to kill an unarmed kid, and was not able to skip away from the shooting without a proper investigation or prosecution. What should have been a routine matter was turned into a media circus, and the narrative of the killing usually vastly overshadowed the actual facts of the case, but that shouldn’t overshadow the basic success that was accomplished — which is that the procedures of the criminal justice system were complied with, no matter what one thinks of the substantive result.

Zimmerman won’t go to jail, because he was able to claim — with no supporting evidence from anything outside of his own police statements — that a kid walking home from the store tried to commit murder, for no better reason than the kid had his feelings hurt by Zimmerman’s decision to follow him in his car. But “not guilty” has never meant “acted in a manner worthy of respect,” and anyone who claims that the acquittal is a vindication of Zimmerman’s insane actions is not someone worth listening to. Zimmerman was irresponsible, and a teenager died as a result.

And, although it should go without saying, Zimmerman being found “not guilty” does nothing to imply, not even in the tiniest amount, that Trayvon was guilty of any criminal acts.

But while the not guilty verdict is disappointing, it’s not outrageous. And Zimmerman’s legal defense is not yet over, because of the fact that Zimmerman has received hundreds of thousands of dollars in donations — money that he is unlikely to prove, with probable cause, that he should be able to keep. While I don’t find the result of the criminal case particularly upsetting, I would be outraged if Zimmerman is able to financially benefit from his decision to kill a kid. Luckily, I don’t expect that to happen. There should be a civil suit here, and all of Zimmerman’s blood money should go to Trayvon Martin’s estate.

If Zimmerman has sense, he will settle any civil claims brought — but nothing Zimmerman has ever done has indicated he has much sense to begin with. Which means Zimmerman will have to produce comprehensive information under the civil discovery process about his actions that night, as well as take the stand himself. And Zimmerman’s criminal defense won’t be sufficient to withstand that.

The Homeowner’s Association for the Retreat at Twin Lakes already settled with Martin’s estate for something above the $1 million policy limit of the HOA’s insurance coverage. Although the specific terms are under seal, and there is no way to know for sure what motivated the HOA to settle, the rumors that have leaked out about the settlement suggest that the HOA had significant exposure on several fronts. Most significantly, it appears that (1) the HOA failed to properly complete the Neighborhood Watch certification requirements for its program, and (2) the HOA had knowledge, from complaints received by other residents, of Zimmerman conducting patrols while armed, in violation of Neighborhood Watch standards (and common sense) and did not take actions to stop it.

The HOA’s liability is nothing compared to Zimmerman’s, and his best move would be to follow the HOA’s lead and settle the civil claims brought against him. But here’s to hoping that he doesn’t take the easy way out — and he’s forced to take the stand.

-Susan

Prudential Considerations, Canons of Construction, and Other Mechanisms of Judicial Receivership

In United States v. Windsor, there is one aside from Justica Scalia’s dissent, written in his trademark snarky fashion, which particularly stands out to me. Scalia, describing himself as being “wryly amus[ed]” (and by which he means “impotently furious”) at the majority’s approach to Article III’s case-or-controversy requirement, makes the following observation:

(Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.)

How very true. Alas, where was this Scalia in Kiobel? I seem to recall that, in that particular instance, he was quite content to join in with a majority opinion which happily forsook jurisdictional limitations, in favor of a mercurial, and curiously flexible, rule of statutory interpretation. And I can’t help but find this faintly hypocritical. At least when it comes to prudential standing, the Court is being perfectly honest about whose whim it is following. As opposed to the polite fiction now known as the presumption against extraterritoriality, which permits the Court to aver that it is merely following the whims of the legislature — after having ascertained those whims, of course, through the application of its own esoteric art.

But then again, I suppose Scalia always does save the mocking, legal realist jibes for his dissents. It often seems that his formalism is reserved solely for those occasions on which his opinion gets enough votes to be the majority.

-Susan

p.s. Someone should tell Scalia that citing reverently to Justice Taney in a civil rights decision is probably a bad idea.

Closing arguments haven’t been made yet, but after

Aside

Closing arguments haven’t been made yet, but after the close of Zimmerman’s defense, my prediction is a manslaughter conviction, by a slight margin, with acquittal the next most likely option, and Murder 2 trailing as the least likely result. Call it a 45/40/15 split.

As far as I am aware, Zimmerman’s defense didn’t present any testimony or evidence concerning how the fight started. Their entire story of the shooting starts about halfway through the fight — call it the “Zimmerman is a fat and slow Dudley Do-Right who was getting his butt kicked” defense. Which is kind of a double edged sword for Zimmerman, because it means his case didn’t introduce any evidence that Trayvon started the fight. It’s counting on the jury to focus on the fact that, at the moment of the shooting, Zimmerman may have genuinely been in fear for his life — while steering the jury away from closely examining his conflicting police statements. The defense’s story is that Zimmerman is bumbling and quixotic, but too inept to be culpable for any harm that resulted.

So if there’s a conviction, it’s more likely to be manslaughter. The state’s strongest case for Murder 2 was always being able to show that Zimmerman intentionally deceived investigators about how the fight started, and that he used his knowledge of self-defense law to deliberately craft a story about why he was justified in killing Trayvon. But since the defense opted to avoid all together Zimmerman’s statements about who threw the first punch, Zimmerman’s veracity didn’t really come into play. The jury could buy that Zimmerman is a reckless fool, who was oblivious of his own limitations and too in love with the idea of playing the hero, but the state wasn’t able to show Zimmerman as calculating and malicious.

In a nutshell: if the jury believes Rachel Jeantel testified truthfully about what she heard on the phone that night, Zimmerman will be convicted of manslaughter. If they’re unsure of what she heard, then the odds are much less likely.

-Susan

Zimmerman’s Statements are the Defense’s Own Worst Enemy

As I discussed in my previous post, there are two plausible scenarios that fit the undisputed evidence in the Zimmerman trial. Zimmerman’s defense is now presenting their case in support of scenario 1: that Trayvon decided to commit murder and beat Zimmerman to death with his bare hands, as revenge for Zimmerman having “disrespected” Trayvon. In making their case, however, Zimmerman has two problems they face. The first is that there is very little they can do to directly disprove the prosecution’s case, as the prosecution’s evidence is largely circumstantial and based on known parts of the record. The second is that the evidence of their version of events all comes from a single witness, George Zimmerman himself — and there are so many points of question and confusion over his testimony that it is difficult, if not outright impossible, to accept his version as being wholly accurate. The prosecution’s job will therefore be to argue that even if Zimmerman’s story cannot be completely relied upon, it reliable enough to create doubt to prove one central point: that perhaps Zimmerman doesn’t know what happened that night, but the events were so confusing that no one else can know either.

I’ve provided below a run-down of the central points for both problems that the prosecution will face.

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