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July 1, 2016

The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes

The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes

by William S. Dodge

[Cross-posted from Opinio Juris.]

In RJR Nabisco, Inc. v. European Community, the Supreme Court applied the presumption against extraterritoriality to determine the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO makes it illegal to use a pattern of racketeering activity in particular ways relating to enterprises. Racketeering activity consists of certain state and federal offenses generally known as predicates-money laundering, for example. RICO also creates a civil cause of action for treble damages for "[a]ny person injured in his business or property" by a RICO violation. In RJR, the Court unanimously held that two of RICO's substantive prohibitions apply extraterritorially to the same extent as their predicates. For example, since the federal money laundering statute, applies to offenses "outside the United States" if the defendant is a U.S. person, RICO also prohibits acquiring an interest in an enterprise or conducting its business through a pattern of money laundering outside the United States if the defendant is a U.S. person. But RJR also held, by a vote of 4-3, that RICO's civil cause of action requires injury to business or property in the United States. The Court thus preserved RICO as a law enforcement tool for the U.S. Government in a wide range of cases, including terrorism cases, while limiting private damages actions that might have caused friction with foreign nations.

In the process of describing its framework for applying the presumption against extraterritoriality, however, the Court said something that it almost certainly did not mean and that is likely to cause confusion among the lower courts unless nipped in the bud. Writing for a unanimous court, Justice Alito said that a court must ask whether the statute gives a clear indication that it applies extraterritorially "regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction." I have previously argued that the presumption against extraterritoriality does not apply to jurisdictional statutes, and in this post I explain why that is still true after RJR.

Although Article III of the U.S. Constitution sets the outer limits of subject matter jurisdiction for federal courts, Congress must confer jurisdiction upon the lower federal courts by statute. The U.S. Code contains a number of general subject matter jurisdiction statutes that apply in large numbers of cases. For criminal cases, 18 U.S.C. § 3231 gives district courts jurisdiction "of all offenses against the laws of the United States." On the civil side, the general federal question statute, 28 U.S.C. § 1331, gives district courts jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States," while the diversity statute, 28 U.S.C. § 1332, gives district courts jurisdiction "of all civil actions where the matter in controversy exceeds the sum or value of $75,000" between citizens of different states or between citizens and aliens (subject to a few exceptions). Some federal statutes have more specific grants of subject matter jurisdiction, like § 27 of the Securities Exchange Act, which gives the district courts jurisdiction over both civil and criminal actions "to enforce any liability or duty" created by the Act or its rules and regulations. None of these statutes contains the "clear, affirmative indication" of extraterritoriality that RJR says is necessary to rebut the presumption against extraterritoriality. Thus, if the presumption really applies to statutes that confer jurisdiction, those statutes might be interpreted not to apply extraterritorially. This might mean that federal courts would lack subject matter jurisdiction over criminal offenses committed abroad even if the substantive offense (like money laundering or RICO violations based on money laundering) clearly applies extraterritorially. It might similarly mean that civil suits arising abroad might have to be dismissed for lack of subject matter jurisdiction even if they are based on federal statutes that clearly apply extraterritoriality or are brought between diverse parties. Any sensible court would hesitate to reach such results. But how do we know that RJR does not command them.

First, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR applied the presumption to RICO's substantive provisions and not to the subject matter statute on which the suit was based. RICO lacks a general subject matter provision of its own, so jurisdiction in the civil suit brought by the European Community had to have been based on § 1331, the general federal question statute. The European Community lost its claim because the Supreme Court held that RICO's civil cause of action required injury to business or property in the United States, but it lost on the merits. The Supreme Court assumed (correctly) that the district court had subject matter jurisdiction under § 1331 to hear the claim in the first place.

Second, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR held that two of RICO's criminal provisions do apply extraterritorially to the same extent as the predicates on which they are based. This preserves the ability of the U.S. government, in the example that the Court itself gave, to use RICO to prosecute "a pattern of killings of Americans abroad in violation of § 2332(a)-a predicate that all agree applies extraterritorially." Yet the Court's holding would be for naught if 18 U.S.C. § 3231, the general subject matter provision for violations of federal criminal law, were limited to the United States.

Third, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because RJR specifically discussed the possibility that the European Community might bring suit for violations of their own laws and "invoke federal diversity jurisdiction as a basis for proceeding in U.S. courts." This would be impossible if 28 U.S.C. § 1332, the federal diversity statute, were limited to cases arising in the United States.

Fourth, we know that the presumption against extraterritoriality does not apply to jurisdictional statutes because Morrison v. National Australia Bank, the decision that RJR elaborates and applies, similarly applied the presumption against extraterritoriality to a substantive provision of the Securities Exchange Act (§ 10(b)) and not to its jurisdictional provision (§ 27). Indeed, the Morrison Court went out of its way to say that "[t]he District Court had jurisdiction under [§ 27] to adjudicate the § 10(b) question."

So if RJR could not have meant that the presumption against extraterritorially applies to statutes granting subject matter jurisdiction, what did the Court mean when it said the presumption applies "regardless of whether the statute in question . . . merely confers jurisdiction"? The RJR Court was attempting to describe what it had done with the presumption in Kiobel v. Royal Dutch Petroleum Co., a case involving the Alien Tort Statute (ATS). In Kiobel, the Court held "that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption." Kiobel, however, did not apply the presumption against extraterritoriality to the ATS itself-a statute the Court characterized as "strictly jurisdictional"-but rather to the implied federal-common-law cause of action under the ATS. On page 9 of the slip opinion, RJR accurately describes Kiobel as a case where "we concluded that principles supporting the presumption should 'similarly constrain courts considering causes of action that may be brought under the ATS.'" And again on page 19, RJR correctly characterizes Kiobel as holding "that the presumption 'constrain[s] courts considering causes of action' under the ATS." Understanding Kiobel to have applied the presumption against extraterritoriality to the implied cause of action and not to the ATS itself also makes sense of Kiobel's statement that the presumption "is typically applied to discern whether an Act of Congress regulating conduct applies abroad," for causes of action regulate conduct in a way that purely jurisdictional statutes do not.

In short, RJR's statement that the presumption against extraterritoriality applies to statutes that "merely confer[] jurisdiction" must be read in context as describing the presumption's application to implied causes of action under statutes like the ATS and not to subject matter jurisdiction statutes themselves. Any other reading would be contrary to what the Supreme Court held with respect to subject matter jurisdiction in Morrison and, indeed, to what the Supreme Court did with respect to subject matter jurisdiction in RJR. It would also be contrary to common sense, for it would constrain the jurisdiction of the federal courts over civil cases and criminal prosecutions based on substantive statutes that clearly apply abroad. One can only hope that lower courts do not waste too much time and effort trying to figure this out.

 

June 17, 2016

Citizenship Victory for Aoki Center and Immigration Law Clinic


Our client Marianne Wilson Kuroda

The Aoki Center for the Critical Study of Race and Nation and the Immigration Law Clinic recently won a derivative citizenship case on behalf of their client, Marianne Wilson Kuroda, who is born, raised and continues to live in Japan.  Specifically, the Center and the Clinic argued that Mrs. Wilson Kuroda was born a U.S. citizen through her father, a U.S. citizen, based on Section 301(g) and 309(b) of the Immigration and Nationality Act (INA). 

Section 301(g) recognizes that a person is a U.S. citizen at birth provided that:

[A] person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

Because Mrs. Wilson Kuroda's parents -- an American man and a mixed-race Japanese, Swedish and German woman born in Japan -- could not marry under federal and military rules that prohibited their interracial marriage, Mrs. Wilson Kuroda was a child born out-of-wedlock.  Thus, she also had to meet the requirements of Section 309(b) of the INA, which provided that "the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation."  Her father, James Vaughn, was forced to return to the United States and sought to bring Mrs. Wilson Kuroda and her mother to immigrate the United States.  Because they were Japanese, they were racially inadmissible under immigration law and needed special legislation to allow them to enter the United States.  At the time of Mrs. Wilson Kuroda's birth in April 1949, Mr. Vaughn was a resident of Nevada.  Thus, for purposes of establishing legitimation, Nevada law applied. (In 1956, Mrs. Wilson Kuroda, then just a little girl, was at the center of a case titled Sweden v. Yamaguchi.)

The Center and the Clinic submitted evidence that Mrs. Wilson Kuroda's father legitimated her before she turned 21 years old.  Evidence submitted include letters that her father sent to Senator Pat McCarran acknowledging Mrs. Wilson Kuroda as his child.  These letters became the basis for a private bill that Senator McCarran introduced in June 1949 and that passed Congress in August 1950.  Unfortunately, Mrs. Wilson Kuroda's mother died on the same day that the bill became law.  Mrs. Wilson Kuroda and her father would never meet. 

However, the Center and the Clinic argued that Mr. Vaughn took sufficient steps under Nevada law to legitimate Mrs. Wilson Kuroda.  Thus, on January 5, 2016, with the assistance of the Center and the Clinic, Mrs. Wilson Kuroda filed an application for a U.S. passport at the U.S. Embassy in Tokyo.  On June 6, 2016, the U.S. Embassy agreed and approved Mrs. Wilson Kuroda's application for a U.S. passport, essentially recognizing her as a U.S. citizen.

Professor Leticia Saucedo and I worked on the case with David Canela ('16), J.J. Mulligan ('15), Emily Wilson ('13), and Andrea Wu ('15).

June 10, 2016

JASTA and Reciprocity

Cross-posted from Just Security.

In April, Curt Bradley and Jack Goldsmith wrote in The New York Times that the Justice Against State Sponsors of Terrorism Act (JASTA) then under consideration in the Senate - a bill that would make it easier for victims of the 9/11 terrorist attacks to sue Saudi Arabia - would violate international law and hinder United States' ability to claim sovereign immunity in other nations' courts. I argued in response that whether JASTA would violate international law was far from clear. Since then, the Senate passed a much changed version of JASTA. The revised bill would, among other things, create a new terrorism exception to the Foreign Sovereign Immunities Act (FSIA) for suits claiming damages for injury or death in the United States caused by the combination of an act of international terrorism in the United States and the act of a foreign state or official anywhere in the world.

Curt and Jack write in a new post that this exception would harm US interests because (1) it might lead to unanticipated suits against countries other than Saudi Arabia, and (2) it will "create a broad precedent that can be used against the United States and its allies as an excuse for 'reciprocal' or 'analogous' reductions in immunity even if no suit is brought against those countries in the United States." They suggest that Congress could reduce the damage to US interests by limiting the exception to Saudi Arabia alone. Doing so, they write, "would confine most of the impact of the statute to US-Saudi relations and thereby minimize collateral consequences." I doubt that the more targeted statute Curt and Jack propose would help with either of the problems they identify.

With respect to the foreign relations difficulties that suits under the new terrorism exception might cause, it is true that limiting the exception to Saudi Arabia would avoid the possibility of suits against other countries, but that possibility seems remote. It is hard to think of other countries whose acts contribute to international terrorism in the United States. And it hard is argue that any countries whose acts contribute to international terrorism in the United States should be immune from suit. On the other hand, singling out Saudi Arabia is likely to increase the affront to that country. 

With respect to the precedent such an exception might create for reciprocal legislation in other countries, it is hard to see how a statute targeted at Saudi Arabia alone would provide less of an excuse for reciprocal reductions in the sovereign immunity of the United States and its allies. If another country wanted to allow suits against the United States in its courts for "international terrorism," a US exception aimed at a single country would be all the precedent it would need. Indeed, even without JASTA, a precedent for such foreign legislation may be found in the United States' existing exception for state sponsors of terrorism which allows suits against Iran, Sudan, and Syria and which is not limited to terrorism in the United States. While I do not think that terrorism exceptions violate international law (Canada has one too), I do think they are problematic. As Curt and Jack wrote back in April, "terrorism is often in the eye of the beholder." It would not be surprising for the United States to find itself targeted someday by another country's terrorism exception to sovereign immunity.

If Congress wants to reduce the adverse impacts on the United States that JASTA might cause, I would suggest another option. Rather than create a new terrorism exception to the FSIA, Congress might amend the territorial tort exception not to require that the "entire tort" have occurred in the United States. This was the option proposed in the version of JASTA that I wrote about in April, and it would be just as effective in removing sovereign immunity as a barrier to the 9/11 suits. The territorial tort option would have several advantages.

First, as I explained in my previous post, the territorial-tort exception is well supported by state practice. Although US courts currently interpret the existing exception in the FSIA to require that the "entire tort" have occurred in the United States, it does not appear that customary international law requires this limitation. Building on the well-established territorial tort exception is likely to be less controversial internationally than expanding the more politically charged terrorism exception.

Second, the territorial tort exception is subject to an important exception of its own for military activities during armed conflict. In 2012, the International Court of Justice (ICJ) concluded in the Jurisdictional Immunities Case (Germany v. Italy) that customary international law requires "that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict" (para. 78). A number of the specific examples that Curt and Jack worried about in their April piece - like arming Syrian rebels or airstrikes against al-Qaeda and the ISIL - would fall in this category. Using the territorial tort option in JASTA would allow the United States to continue to claim immunity under customary international law for military activities even if JASTA eliminated immunity for non-military activities.

Third, it is important to remember that the territorial tort exception is a territorial tort exception. The only countries that would be able to exercise jurisdiction over the United States reciprocally by enacting a similar exception are those countries in which tortious injury occurs. In April, Curt and Jack raised the possibility that the United States might become subject to suits based on financial support of Israel that results in displacing or killing Palestinians in the West Bank. But under the territorial tort exception, it is only the courts of the Palestinian Authority that would be able to exercise such jurisdiction. The territorial tort option would create no risk of expanded jurisdiction for torts in the courts of third countries.

Of course, the same is technically true of JASTA's new terrorism exception, which requires an act of international terrorism "in the United States." But it is not true of the existing FSIA exception for state sponsors of terrorism, which contains no such limitation. If Congress is really worried about reciprocal legislation by other countries that might strip the United States of its sovereign immunity, the territorial tort option is a safer one than the terrorism option passed by the Senate.

Although I am less concerned than Curt and Jack about the adverse impacts of passing JASTA, they have certainly identified some genuine concerns. The territorial tort option would be a better way of addressing those concerns than limiting the bill to Saudi Arabia. Whatever speculative damage to US relations with other countries might be avoided by limiting the bill as Curt and Jack suggest is likely to be more than offset by the offense that singling out Saudi Arabia would cause. As for the precedent that JASTA would set for reciprocal legislation in other countries, a territorial tort exception would build on a firmer foundation, exempt military activities, and be territorially limited in ways that a terrorism exception - even one limited to a single country - would not.

May 6, 2016

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 18, No. 2

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Governance and the Indian Private Equity Model" 
National Law School of India Review, Volume 27, Issue 1
UC Davis Legal Studies Research Paper No. 484

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

Private Equity (PE) firms have long invested in Western firms using a leveraged buyout (LBO) model, whereby they acquire a company that they can grow with the ultimate goal of either selling it to a strategic buyer or taking it public. Unable to undertake the traditional LBO model in India, PE investors in Indian firms have developed a new model. Under this Indian PE Model, PE firms typically acquire minority interests in controlled companies using a structure that is both hybridized from other Western investment models and customized for India's complex legal environment. As minority shareholders in controlled firms, PE investors in India have developed several strategies to address their governance concerns. In particular, PE investors in India have focused on solutions to address local problems through the use of agreements that govern (i) the structuring of minority investments, (ii) investor control rights, and (iii) exit strategies. Nevertheless, recent governance and regulatory difficulties highlight the continuing uncertainty surrounding the Indian PE model.

"National Data Governance in a Global Economy" 
Columbia School of International and Public Affairs Issues Brief, April 2016
UC Davis Legal Studies Research Paper No. 495

ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu

Global data flows are the lifeblood of the global economy today and of the technologies of the future. Yet, the regulation of how data is to be handled remains largely the province of national laws. How we resolve the dilemmas of global flows within a nation-state structure will impact the digital economy, free expression, privacy, security, consumer protection, and taxation. Just as we once built an architecture for cross-border flow of goods, we need to build an architecture for cross-border flow of information.

"The Charming Betsy and the Paquete Habana" 
UC Davis Legal Studies Research Paper No. 485

WILLIAM S. DODGE, University of California, Davis - School of Law
Email: wsdodge@ucdavis.edu

This chapter for the book "Landmark Cases in Public International Law" discusses two famous U.S. Supreme Court decisions - The Charming Betsy (1804) and The Paquete Habana (1900). Although written nearly one hundred years apart, each decision appears to stand for similar propositions - that international law has an important place in the law of the United States, but that U.S. domestic law should prevail in the event of conflict. What often goes unnoticed is that the Supreme Court decided these cases against the backdrop of very different understandings about international law and its relationship to U.S. domestic law.

In addition to discussing the background and significance of each case, this chapter describes three shifts in U.S. thinking about customary international law during the nineteenth century. First, the theoretical foundations of customary international law shifted away from natural law towards positivism. Second, the consent requirement for making customary international law shifted from the individual consent of each state to the consent of states generally. And third, the U.S. understanding of the relationship between international law and domestic law shifted away from monism towards dualism - away from an understanding that international law was part of U.S. law unless displaced, towards an understanding that international law was not part of U.S. law unless adopted. The Charming Betsy and The Paquete Habana are landmark cases not because they changed the course of international law in the United States but because they reveal changes in the landscape.

"Probate Lending" 
Yale Law Journal, Vol. 126, 2016
UC Davis Legal Studies Research Paper No. 492

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu
ANDREA CANN CHANDRASEKHER, University of California, Davis - School of Law
Email: achandrasekher@ucdavis.edu

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibition, opening the door for businesses to invest in other parties' claims. Although some courts, lawmakers, and scholars applaud litigation lenders for helping wronged individuals obtain relief, others accuse them of exploiting low-income plaintiffs and increasing court congestion.

This Article reveals that a similar phenomenon has quietly emerged in the probate system. Recently, companies have started to make "probate loans": advancing funds to heirs or beneficiaries to be repaid from their interest in a court-supervised estate. The Article sheds light on this shadowy practice by empirically analyzing 594 probate administrations from a major California county. It finds that probate lending is a lucrative business. Nevertheless, it also concludes that some of the strongest rationales for banning the sale of causes of action - concerns about abusive transactions and the corrosive effect of outsiders on judicial processes - apply to transfers of inheritance rights. The Article thus suggests several ways to regulate this nascent industry.

"The Social Transmission of Racism" 
Tulsa Law Review, Vol. 51, 2016
UC Davis Legal Studies Research Paper No. 489

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

This essay reviews two books, Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard University Press 2014) and Osagie K. Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). Sussman is an anthropologist who brings his expertise to bear in tracing scientific racism through history. Obasogie is a legal scholar and sociologist who uses both qualitative data gathered through interviews with blind and sighted people and Critical Race Theory to explore racialization's dependence on the idea that race is visually obvious. Each book examines an idea that has sustained racism despite social, political and geographic change. The essay assesses each account and links the authors' analyses to judicial and legislative framings of reproductive rights and to postmodernist scholarship on race, gender and the human body.

"Computer Source Code: A Source of the Growing Controversy Over the Reliability of Automated Forensic Techniques" 
DePaul Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 487

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

The article deals with two legal issues posed by the growing trend in the United States to automate forensic analyses.

Since World War II, we have had alarming insights into the unreliability of both eyewitness testimony and confession evidence. Those insights have prompted the criminal justice system to place greater reliance on forensic evidence. In one Rand study, the researchers found that expert testimony was presented at 86% of the trials examined. This shift to greater use of expert testimony has placed growing demands on crime laboratories. For example, the backlog of unanalyzed DNA samples has become such an acute problem that Congress was impelled to enact the DNA Backlog Elimination Act to provide funding to reduce the backlog of untested rape kits.

In both the public and private sectors, the typical response to the development of a backlog is technological automation. That has certainly held true for forensic analysis. There is now widespread automation in such areas as fingerprint examination, breath testing, and DNA analysis. The argument runs that automation holds the promise of both enhancing efficiency and improving the accuracy of the analyses proffered in court.

That promise turns on the accuracy of the source code controlling the software governing the automated techniques. The source code embeds the instructions determining which tasks the program performs, how the program performs them, and the order in which it performs the tasks. The validity of a program's source code is the most fundamental guarantee of a software program's reliability. Defense counsel have sometimes challenged the software for automated forensic techniques. Early in this century, the defense counsel attacked the software controlling automated infrared breath testing devices. Today they are challenging the software for the TrueAllele program analyzing mixed DNA samples. Those waves of cases have posed two issues: (1) whether the prosecution can lay a sufficient foundation for evidence based on an automated technique without presenting testimony about the computer source code; and (2) whether the defense has any discovery right to access to the code. Almost all the courts have answered the first question in the affirmative and the second question in the negative. In responding to the second question, the courts have reasoned that the existence of validation studies for the technique eliminates any need to scrutinize the source code and that in any event, manufacturers have an evidentiary privilege protecting the code as a trade secret. The purpose of this short article is to critically evaluate the judicial response to both questions.

On the one hand, the article argues that the courts have correctly answered the first question. More specifically, the prosecution may lay an adequate foundation by presenting testimony describing validation studies for the automated technique even if the testimony does not touch on the source code. On the other hand, the article contends that in some cases, the courts ought to accord the defense a pretrial discovery limit. The article explains the limited utility of validation studies and notes that the evidentiary privilege for trade secrets is a qualified one that can be surmounted when the party seeking discovery has a significant need for the information. The article proposes a procedure that judges can employ to resolve the tension between the defendant's need for access to the source code and the manufacturer's legitimate interest in safeguarding its valuable proprietary information.

"Beyond Surveillance: Data Control and Body Cameras" 
__ Surveillance & Society __ (2016) Forthcoming
UC Davis Legal Studies Research Paper No. 494

ELIZABETH E. JOH, University of California, Davis - School of Law
Email: eejoh@ucdavis.edu

Body cameras collect video data - lots of it - and thus many have raised questions about increased government surveillance. But if understood primarily as data collection, surveillance represents only one concern. In our big data age, "seeing, monitoring, and recording the digital footprints is quite different from sharing, releasing, revealing or publicizing the data." Body camera policies must address not only concerns about surveillance, but also data control.

"Some Thoughts on the Future of Legal Education: Why Diversity and Student Wellness Should Matter in a Time of 'Crisis'" 
Buffalo Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 488

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

Some vocal critics have loudly proclaimed that the challenges of law school economic have reached "crisis" proportions. They point to the well-known facts about recent developments in the market for law schools. Law schools have experienced a precipitous drop in applications. The global recession decimated the legal job market. To make matters worse, rising tuition has resulted in increasing debt loads for law graduates.

In light of the changes in the legal marketplace, stabilization of the budgetary picture is currently the first priority of virtually every American law school. Faculty members have been let go. Staffs reduced. Enrollment of students - and the collection of tuition revenues - have critical budgetary consequences.

Linked to the economic "crisis" facing law schools and students was deep concern with each school's relative placement in the much-watched U.S. News and World Report law school rankings. These rankings, among other things, affect admissions and enrollment, and thus budgetary bottom lines for law schools.

Much less publicized concerns with legal education involve non-financial issues. The lack of racial and other diversity of students attending law school, and ultimately entering the legal profession, and faculty, has long been a problem. In addition, today's students demand a more humane legal education and are asking for additional academic support, career and mental health counseling, experiential learning opportunities, and more. The costs of the additional services and programs have further added to budgetary pressures on law schools.

This Essay contends that law schools should strive to address the noneconomic as well as the economic problems with modern legal education. In a time of considerable change, this is a most opportune time to consider and implement deep and enduring improvements that benefit students as well as the entire legal profession.

"Welfare Queens and White Trash" 
25 Southern California Interdisciplinary Law Journal 289 (2016)
UC Davis Legal Studies Research Paper No. 486

LISA R. PRUITT, University of California, Davis - School of Law
Email: lrpruitt@ucdavis.edu

The "welfare queen" is widely recognized as a racialized construct deployed by politicians to undermine support for public benefits and the wider social safety net. Less often recognized or discussed is the flip side of the welfare queen's conflation of blackness with dependency and poverty: the conflation of whiteness with self-sufficiency, autonomy, and affluence. The welfare queen trope, along with media and scholarly depictions of socioeconomic disadvantage as a nonwhite phenomenon, deflects attention from white poverty. Yet data indicate that a majority of poor people in the United States self-identify as white.

This essay, written for the "Reframing the Welfare Queen" symposium, (re)surfaces the existence of white poverty and ponders its (in)visibility, meaning, and significance in relation to the welfare queen construct. Among other things, Pruitt suggests that the welfare queen stigmatype is not just bad for blacks, it is bad for poor whites. First, it obscures white poverty, rendering poor whites and their plight invisible. Second, to the extent we are aware of white poverty, the widespread conflation of whiteness with affluence suggests that poor whites have only themselves to blame, given the benefits widely associated with white-skin privilege.

Given the welfare queen's potency as a racialized construct, we might assume that greater awareness of white poverty would enhance public support for safety net programs because middle and upper income whites would (so the story goes) want to ameliorate white poverty, even if racial animus discourages their support for poor blacks. But Pruitt questions the soundness of this line of reasoning, which discounts the existence and potency of intraracial discrimination in assuming that society feels greater empathy with or concern for the fate of poor whites than for poor nonwhites. In fact, we have several reasons - including empirical studies - to believe that such a well of empathy is missing. A further reason for skepticism is found in a second racialized construct explored in this article: white trash.

"Tax Cannibalization and Fiscal Federalism in the United States" 
Northwestern University Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 491
UC Berkeley Public Law Research Paper No. 2750933

DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu

The current structure of U.S. federal tax law incentivizes state governments to adopt tax policies that inflict costs on the federal government, at the expense of national welfare. We label this the "tax cannibalization problem."

This article introduces the tax cannibalization problem to the law and policy literatures for the first time. This article also explains how U.S. federal tax law might be restructured so as to alleviate the tax cannibalization problem - to counteract the perverse incentives currently leading U.S. state governments to design their tax systems so as to, in effect, wastefully devour federal tax revenues.

"Stitches for Snitches: Lawyers as Whistleblowers" 
UC Davis Law Review, Forthcoming (2017)
UC Davis Legal Studies Research Paper No. 493

DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

This Article challenges the prevailing wisdom that ethics rules forbid lawyers from blowing the whistle on a client's illegal conduct. While a lawyer is not free to disclose confidential information in every jurisdiction for every legal violation, the ethics rules in all jurisdictions permit disclosure of confidential information pertaining to a client's illegal activities under certain conditions. Proving the lie of the prevailing wisdom, this Article examines a high profile case in the state of New York that ruled a lawyer whistleblower violated the state's ethics rules by revealing confidential information to stop his employer-client from engaging in a tax fraud of epic proportions. The Article argues that the court undertook a deficient analysis of New York ethics rules pertaining to permissive disclosure of confidential client information. Even if the whistleblower had violated his ethical obligations, the New York False Claims Act (the statute under which he brought his action) expressly protects disclosure of confidential employer information made in furtherance of the statute. In addition to New York's statutory shield, federal courts across the country have developed a public policy exception safeguarding whistleblowers for disclosing confidential information that detects and exposes an employer's illegal conduct.

While challenging the previously unchallenged criticism of lawyer whistleblowers, this Article acknowledges the intrinsic appeal of that position. The idea of a lawyer revealing a client's transgressions - particularly for monetary awards paid under various federal and state whistleblower programs - seems unsavory and a threat to the attorney-client relationship. Nonetheless, lawyers have always had the discretion to disclose confidential information to prevent a client from committing a crime or fraud. And although the addition of financial incentives complicates the analysis, modern ethics rules extend to lawyers considerable discretion in revealing confidential client information, even if disclosure makes a lawyer eligible for financial awards.

April 27, 2016

Would JASTA Violate International Law?

Cross-posted from Just Security.

Writing in The New York Times last Friday, Curt Bradley and Jack Goldsmith argued that the Justice Against State Sponsors of Terrorism Act (JASTA) would "violate a core principle of international law," the principle of foreign sovereign immunity. At Lawfare, former State Department Legal Adviser John Bellinger seconded their assertion. Earlier in the week, White House Press Secretary Josh Earnest expressed similar concerns. (For a good primer on JASTA and its background, see Steve Vladeck's post here.) The amount of legal analysis one can fit into an op-ed is necessarily limited, and it would be welcome to see Curt, Jack, John, or others flesh out the argument. But, in my view, there are serious problems with the assertion that JASTA would violate customary international law governing sovereign immunity, problems that raise more general questions of how one identifies rules of customary international law.

Curt and Jack summarize their international law argument this way: 

A nation's immunity from lawsuits in the courts of another nation is a fundamental tenet of international law. This tenet is based on the idea that equal sovereigns should not use their courts to sit in judgment of one another. Many nations have tacitly agreed to limit immunity in specified contexts, such as when they engage in certain commercial activities. But apart from those exceptions (or where a binding treaty or Security Council resolution otherwise dictates), international law continues to guarantee immunity, even for alleged egregious crimes.

The first question to ask is where this fundamental tenet of international law comes from. I believe it is common ground that - as the Restatement (Third) of Foreign Relations Law puts it - "[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation." If one looks at state practice with respect to foreign sovereign immunity, one finds some situations in which states are consistently held to be immune from the jurisdiction of the courts of other states, other situations in which states are consistently held not to be immune, other situations in which the practice is mixed, and still other situations in which there is no practice at all. How should one make sense of this practice?

Curt and Jack's approach with respect to foreign sovereign immunity seems to be to infer a general rule of immunity based on state practice granting immunity and to treat the state practice denying immunity as establishing exceptions to the general rule. Where the practice is mixed or non-existent, the general rule of immunity would govern because there is not a "general and consistent practice of states" sufficient to create an exception. Of course, this is not the only possible way to read the existing state practice. One could instead infer specific rules of immunity only in those situations where there is a general and consistent practice of granting immunity. Under this approach, where the practice is mixed or non-existent, a general rule of non-immunity would govern. As Curt has recently written on page 34 in his excellent contribution to the book Custom's Future, one must "necessarily make choices about how to describe [state practice], which baselines to apply in evaluating it, and whether or when to extend or analogize it to new situations." I agree. My point is simply that the choices Curt and Jack have made in their analysis of sovereign immunity are choices - and they need to be defended.

One way to defend their approach would be to invoke the International Court of Justice's 2012 decision in the Jurisdictional Immunities Case (Germany v. Italy), which took a similar approach to questions of sovereign immunity. But the ICJ took this approach because the state parties to the dispute both agreed on it. See paragraph 61 ("Both Parties agree that States are generally entitled to immunity in respect of acta jure imperii."). In light of the parties' agreement, the ICJ was certainly justified in starting with a general rule of immunity and then looking for state practice sufficient to support exceptions. But as Curt again has reminded us in his contribution to Custom's Future, "ICJ decisions are technically binding only on the parties and thus should not automatically be treated as the last word by the international community on the content of [customary international law]" (p. 59).

Even if one adopts Curt and Jack's basic approach to sovereign immunity, there remains the question of how broadly or narrowly to read the state practice creating exceptions to the general rule. There is lots of state practice supporting a territorial tort exception to sovereign immunity - that is, an exception for torts that occur in the nation that would exercise jurisdiction over the foreign state. (See Jurisdictional Immunities paragraphs 62-79.) This is what allows Americans injured in traffic accidents by a foreign government employee to sue the foreign state for damages. One might argue that this state practice should be read narrowly to apply only in these sorts of situations. But states that have codified the exception have done so in general terms applicable to any tort.

The US Foreign Sovereign Immunities Act (FSIA) also codifies the territorial tort exception in general terms. (See 28 U.S.C. § 1605(a)(5).) But US courts have interpreted it to require that the "entire tort" occurs within the United States. (See the Second Circuit Court of Appeals 2013 decision from In re Terrorist Attacks on September 11, 2001.) It is this limitation that JASTA would remove. JASTA would still require that there be "physical injury or death, or damage to or loss of property, occurring in the United States," but it would make clear that the territorial tort exception applies "regardless of where the underlying tortious act or omission occurs."

Customary international law does not seem to require the "entire tort" limitation. Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties would apply the territorial tort exception if the act or omission occurred "in whole or in part" in the territory of the state exercising jurisdiction. Most nations that have codified the exception appear to require some act or omission in their territories, but it is not clear that these nations have done so from a sense of international legal obligation rather than from comity. Even if customary international law were properly read to preclude a nation from applying the territorial tort exception solely on the basis of death and damage within its territory, the application of JASTA to the 9/11 cases would still not violate international law, since the 9/11 attacks clearly involved tortious acts in the United States.

Another, more controversial, path would be to expand the FSIA's terrorism exception, so that it covers state-sponsored terrorism even when the foreign state has not been designated by the State Department as a state-sponsor of terrorism, as is currently required under the FSIA. JASTA would not do this, but Curt and Jack discuss it at some length, so it is worth considering. They assert that the current exception "is almost certainly contrary to international law." If this is true of the existing exception, then it would also be true of an expanded exception.

But I am not so sure that the terrorism exception violates customary international law. First, the United States is not alone in having adopted such an exception - Canada has done so too in Section 6.1 of its State Immunity Act. Second, to my knowledge, these exceptions have not provoked the sorts of widespread protests one might expect from other nations in the event of a clear violation of customary international law. Curt and Jack anticipate this point, explaining that "[t]he controversy has been muted, however, because the exception applies to only a few nations designated as bad actors by the executive branch." This is true, but explaining away the absence of protests is not the same thing as having such protests as evidence of state practice. Third, Curt's and Jack's argument here necessarily depends on the choices they made at the outset about how to organize existing state practice. This is a situation in which the state practice is mixed - two states have such exceptions but most do not. Whether customary international law requires immunity for state-sponsored terrorism depends on whether one begins from a baseline of immunity (as Curt and Jack do) or from a baseline of non-immunity. To repeat what I said above, this is a choice and must be defended.

Of course, Curt and Jack are trying to make a policy argument based on reciprocity too. They write: "If the United States reduces the immunity it accords to other nations, it exposes itself to an equivalent reduction in its own immunity abroad." But their reciprocity argument against JASTA depends on several propositions. First, it depends on the proposition that other states would view the immunity that the United States currently extends (and that JASTA would take away) as required by international law. If not, then they are already free to reduce the immunity they extend the United States, whether JASTA passes or not. Second, it depends on the proposition that other countries would read JASTA broadly to authorize exceptions to sovereign immunity in non-identical situations. Curt and Jack write: "It might appear that the United States has little to fear in lawsuits abroad for acts of terrorism akin to 9/11. But terrorism is often in the eye of the beholder, and reciprocity need not be precise." A broad reading of JASTA is possible, but certainly not inevitable, and the United States would have strong arguments that its practice should be read more narrowly. Finally, Curt and Jack's reciprocity argument depends on the proposition that international law influences the behavior of other states. I believe that to be true, but Jack has co-written an entire book disputing the proposition. See The Limits of International Law.

In the end, I am not certain whether Congress should pass JASTA. Much depends on how one weighs the benefits of providing legal redress for victims of terrorism against the impact on relations with countries like Saudi Arabia that currently cooperate with US counterterrorism efforts. But as a legal matter, the argument that JASTA would violate international law is far from clear.

January 15, 2016

Immigration Article of the Day: "The Mediterranean Migration: A Clash of Titans' Obligations?" by Barbara Miltner

Cross-posted from Immigration Prof Blog.

Here's my pick for Immigration Article of the Day for the blog:

The Mediterranean Migration: A Clash of Titans' Obligations? by Barbara Miltner, UC Davis School of Law, December 2015, The Brown Journal of World Affairs, Fall/Winter 2015, Vol. XXII, Issue I, UC Davis Legal Studies Research Paper No. 476

Abstract: Nearly 670,000 migrants crossed the Mediterranean to reach European shores in the first ten months of 2015. The influx has been characterized as the greatest migration crisis since World War II. The associated death toll is equally alarming. In April alone, over 800 migrants died in the largest maritime refugee disaster on record, provoking calls for an immediate response. Following an emergency summit, EU leaders reacted by launching new criminal anti-smuggling measures and an intensive maritime surveillance program in the Mediterranean, among other measures. The response has been criticized for its emphasis on militarized border control strategies at the expense of humanitarian protection measures in relation to maritime rescue and asylum screening. Certainly, such an enforcement-oriented approach to border controls is not new, but it is legally problematic. This article examines the latest European response to the Mediterranean migration crisis from an international legal standpoint. It considers aspects of the proposal with regard to the roles and conduct of individual member states, as well as those of the EU border control agency Frontex. The article examines recent jurisprudential developments, both within and beyond the European sphere, to highlight new and emerging legal limitations on state actors at sea.

December 23, 2015

Dodge and Elmendorf Publish in Columbia Law Review

The December issue of the Columbia Law Review is out, and two of its scholarly articles come from King Hall faculty: William S. Dodge and Christopher S. Elmendorf.

Professor Dodge's article is International Comity in American Law. Abstract: "International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity-from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government's privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This Article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and a framework for analyzing its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge the myths that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch."

Professor Elmendorf's article (with Douglas M. Spencer) is Administering Section 2 of the Voting Rights Act After Shelby County. Abstract: "Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section 5. The proposed reformation of section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in section 2 cases; and second, that the courts have authority to regularize section 2 adjudication by creating rebuttable presumptions. Most section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases - each relying on data from a different set of elections - are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of section 2 litigation. This approach would also reduce the dependence of vote dilution claims on often-unreliable techniques of ecological inference and would make coalitional claims brought jointly by two or more minority groups much easier to litigate."

Congratulations on these prestigious placements, Professors Dodge and Elmendorf!

November 11, 2015

"The Uncondemned" at Napa Valley Film Festival, Nov. 12-15

"The Uncondemned," a feature documentary about the first conviction of rape as a war crime, is showing at the Napa Valley Film Festival, which starts tomorrow, Thursday Nov. 12.  

That first conviction came in 1998 in a decision by the International Criminal Tribunal for Rwanda (ICTR) in the case against Jean-Paul Akayesu, the mayor of Taba Commune.  I worked at ICTR as a gender consultant in 1996, analyzing the evidence of sexual assault in the Akayesu matter, and I am therefore one of the "baby lawyers" who worked on the case and who is featured in the film. (Photo below from 1996, as we flew between Kigali where the Office of the Prosecutor was located and Arusha, Tanzania, where the tribunal judges sat.) 

The film already won two awards at the Hamptons International Film Festival, including the Brizzolara Family Foundation Award for the best film about conflict and resolution. The Guardian.com filed this story about the film and that award.

I have seen the film once before, this summer in Rwanda when the Rwandan witnesses (one of whom is pictured in the flyer) saw it for the first time.  Read more in this previous blog entry.  I'm looking forward to seeing it again tomorrow night, this time with two UC Davis colleagues, Keith Watenpaugh (Religious Studies, History, Human Rights) and Michael Lazzara (Spanish, Cinema and Digital Media). Both are involved with UC Davis's Human Rights Initiative, a project of the Davis Humanities Institute.  Hope to see some of you in Napa this weekend, where the film will be shown at a different venue each day.  Here is the schedule.

October 1, 2015

TIME Ideas: Borders Should Be Checkpoints, Not Roadblocks, to Migrants

I was invited to contribute an essay to TIME Magazine's "Ideas" section.

The result is this: "Borders Should Be Checkpoints - Not Roadblocks - to Migrants."

An excerpt:

The Syrian refugee crisis unfortunately is simply the latest mass migration to challenge the global community. Just last summer, for example, the U.S. was the destination for tens of thousands of women and children fleeing rampant gang violence in Central America. Many other contemporary examples of large movements of people—Haiti, Africa and Vietnam—come to mind.

How do we as global community respond to large-scale migration flows caused by civil war, mass disaster or severe economic deprivation? Unfortunately, the law performs the worst in the situation where it is needed the most. Tight controls over numbers of people admitted do not help address mass migrations of people. More liberal admissions are urgently needed.

International law and the law of individual nations should be more open and admit migrants who want to work in low- and medium-skilled (as well as high-skilled) jobs that are highly valued by the economies of Western nations, which have experienced dwindling labor forces with decreasing fertility rates. We should show our true commitment to the global community by welcoming refugees fleeing violence, natural disaster, and lack of opportunity with open arms, not try to stop them from entering the country.

Read the full essay at TIME Ideas. Thanks to TIME for the opportunity!

December 16, 2013

Prof. Karima Bennoune to Deliver Guest Lecture in Middle East/South Asia Studies

Please note new date below.

Professor Karima Bennoune will deliver a guest lecture on February 10 in the Department of Middle East/South Asia Studies at UC Davis. The public lecture is titled, "Sidi Bouzid Blues and the Green Wave: Journeys through the Arab Spring and Fall."