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May 7, 2018

From the Bookshelves: From Extraction to Emancipation: Development Reimagined by Raquel Aldana and Steven W. Bender

by Kevin R. Johnson

 

[Cross-posted from ImmigrationProf Blog]

 

From Extraction to Emancipation: Development Reimagined by Raquel Aldana and Steven W. Bender


Growing out of a site visit to Guatemala in the summer of 2015 and a follow-up conference, Raquel Aldana and Steven Bender, editors, have produced an edited volume that considers Guatemala as a case study to examine broad global themes arising from development practices in emerging economies around the world, including the final theme of migration and development.  The book includes chapters by fourteen scholars from the North and South, including Raquel Aldana, Steven Bender, Karrigan Börk, Julie Davies, Patrícia Ferreira, Lauren Gilbert, Christian Gonzalez, Beto Juarez, Mario Mancilla, Marcia Narine Weldon,  Blake Nordahl,  Mario Peña Chacon, Rachael Salcido and Maria Antonia Tigre. 

 

A significant economic development strategy of emerging economies has involved the promotion of direct foreign investment and trade.  While these practices have promoted steady economic growth, the book offers important lessons to investors and policy makers on strategies to improve distributional justice and respect for the rule of law. A large focus of the book is on enhancing corporate social responsibility, recognizing the unwillingness or inability of failed democracies to regulate industry’s potential ill effects on the environment and people, and in particular indigenous peoples who comprise a significant part of Guatemala’s population and are disproportionately poor. The book also examines such global themes as climate change, labor regimes in the context of trade, and forced migration (mostly from indigenous communities), all of which have transborder implications and across-border commonalities.

 

Part V of the book looks at the phenomena of migration and development. The recent surge of Central American unaccompanied minors and children fleeing with their mothers to the United States made it imperative to confront the human face of migrants whose fates are rooted in the dire reality that the countries from which they flee cannot or will not protect them. Largely, these migrants are escaping violence perpetuated by private actors, at times by gang members or even their own parents or spouses. Their stories of flight cannot be disengaged from the broader context in which the violence occurs. Theirs is also the story of failed nations, characterized by ineptitude, weakness and, even worse, indifference or at times even complicity. This story of failed nations applies beyond the reign of private “rogues” whom everyone agrees are bad actors (gangs, drug traffickers, violent criminals). The other side of the coin is a more nuanced story about the failing role of some of these Central American nations in regulating the acts of corporations, whether owned by the oligarchy or operated by transnational actors.

 

Blake Nordahl’s chapter, for example, narrates Evelia’s story. Evelia, like many other Central American asylum seekers, won her case based on a compelling story of domestic violence. Nordahl’s trip to  Guatemala to study Evelia’s prior life in rural Guatemala, however, revealed to him and to readers a more complex entangled story of privatized violence that includes the historical and modern exploitation of people at the hands of Guatemala’s sugar industry. This carefully documented chapter makes a compelling case to move our own asylum and refugee laws beyond simple stories of  individualized violence and to recognize the so-called “economic refugees” from nations like Guatemala as victims of a structural persecution that also involves collusion between the state and corporations.

 

Lauren Gilbert’s chapter connects Guatemala’s story of migration and violence to both the past and the present— the civil war years to now—and to the licit and illicit actors who exploit them. Her concluding chapter examines the role of gendered violence directed at women in El Salvador, Guatemala, and Honduras both during the political upheavals of the 1980s and 1990s and over the last decade, examining how the failure then to confront gender violence as a form of state-sponsored terrorism led to its role today in contributing to the climate of fear and instability that plagues the region. The gendered violence that propels migration today from the Northern Triangle is connected to this dark yet largely untold history. Today, the levels of violence in these countries match or surpass those during wartime. While today, Northern Triangle states largely blame private actors (e.g., gangs) for the resurgence of violence directed at women, Gilbert’s chapter shows that this new terror cannot be disentangled from these nations’ dark past with gendered state-sponsored violence.

 

In the end, both Nordahl and Gilbert look to international norms as part of the solution. Nordahl acknowledges that permanent solutions to Guatemala’s structural violence are largely a Guatemala project. However, he also documents that for the past twenty years Guatemala’s feeble attempts at land reforms and poverty alleviation through multiple policies have been largely inadequate. Thus, at least for now, Nordahl makes a compelling case that more expansive notions of persecution must be adopted as part of refugee law to recognize economic exploitation as persecution. For her part, Gilbert sees hope in international law’s evolution in recognizing gendered violence, a significant shift from when she worked as a UN Truth Commission lawyer in El Salvador more than twenty-five years ago. This new visibility and naming of gendered violence is an important first step to counter practices, including in the United States, of turning our backs on persecuted women and girls.

 

Download Introductory chapter of book


April 30, 2018

Changing the politics of housing in California

by Christopher S. Elmendorf, Richard Frank and Darien Shanske

[Cross-posted from the San Francisco Chronicle]

The recent defeat of Senate Bill 827, state Sen. Scott Wiener’s bill allowing 5-story buildings near transit hubs, was an enormous setback for California’s efforts to make housing more affordable while reducing greenhouse gas emissions.

Our state is now in a serious bind.

The only way to make California housing widely affordable is to build a lot more of it. We could do this with Texas-style suburban sprawl — Houston has boomed while remaining affordable — but that would sacrifice the environment. The alternative is to add residential density to existing neighborhoods, near job centers and mass transit.

California picked density over sprawl a decade ago, when it enacted SB375, a commendable law that requires local governments to plan for energy-efficient, transit-oriented development. Yet most city and county planners report that this planning mandate has had “little to no impact on actions by their city.”

The defeat of Wiener’s bill and the so far meager impact of SB375 speak to a deeper truth: California is not going to achieve large-scale, high-density development near transit unless it can change the local politics of housing.

In theory, the state might induce pro-housing political realignments with taxes and subsidies — for example, reallocating property tax revenue to cities that allow dense housing near transit and starving those that don’t. But the quick demise of SB827 suggests that serious penalties are not yet enactable, and subsidies would have to compete with many other General Fund priorities.

We think California can bolster pro-housing forces at the local level without bringing down the hammer or breaking the bank. Consider these alternatives:

1. Leverage “cap and trade” to make the climate consequences of density more transparent — and more tangible. The linchpin of California’s climate change regime is the state’s cap-and-trade program, which puts a statewide ceiling on greenhouse gas emissions from industrial sources and requires emitters to buy allowances for their releases. California could strengthen pro-housing forces in city politics by folding local governments into the cap-and-trade program.

The state would issue a formula estimating the per-dwelling climate impact of new developments, taking account of proximity to transit, size, materials and parking. When a local government permits new housing that’s more climate-efficient than the typical new unit statewide, it would be rewarded with credits to sell in the cap-and-trade market.

This would give pro-housing “YIMBY” activists a green cudgel to wield in local fights over development. Using the state’s formula, proponents could quantify the environmental benefits of each project near transit. Meanwhile, budget-minded city officials would have a fiscal incentive to upzone land near transit. The more transit-friendly development the city permits, the more allowances it would earn to sell in the greenhouse-gas market.

2. Reframe local debates with state reporting of “housing potential” along transit lines. Guardians of the status quo point out that San Francisco has increased its housing production in recent years. But the picture would look quite different if we compared current production to the city’s potential for transit-friendly housing, rather than to the city’s very modest output over the past few decades.

3. Let cities recapture the value they can create by upzoning and streamlined permitting. Opponents of Wiener’s bill called it a giveaway to developers. They had a point. Rezoning a lot from single-family use to five-story apartments increases its value tremendously. Why should the landowner keep all that profit? When local governments control rezoning, they can demand ancillary benefits such as affordable-housing units, infrastructure investments, and more. All this is standard fare — and not just for major rezonings, but for individual projects under the highly discretionary permitting rules that prevail at the local level today.

Yet project-by-project bargaining has major downsides. The uncertainties and delays, and the inefficient medium of exchange (in-kind benefits rather than money), contribute to the result we see all around us: an inadequate supply of new housing. Local officials surely understand this, but right now they have no way to profit from clear, nondiscretionary rules for development.

To encourage development on lands near transit, California should allow cities to share directly in the property value created by upzoning and permitting reforms. Cities could be authorized to impose “special assessments” for upzoning or permit-streamlining on lands within a half-mile of transit — recouping, say, 50 percent to 75 percent of the value added. The state law authorizing such value-recapture assessments would probably need to be approved by referendum vote. But once it is enacted, cities would have a fiscal incentive to supplant project-specific haggling with transparent, value-enhancing and development-enabling rules.

Our state’s housing-affordability crisis was decades in the making, and these solutions won’t work miracles overnight. But if state-mandated upzoning is off the table, and state-mandated planning is ineffectual, we had better start thinking about ways the state might intervene at the root, targeting the local politics of housing.

April 30, 2018

Native American Treaties, Declining Salmon Populations, Broken Promises & Environmental Justice

by Richard Frank

[Cross-posted from Legal Planet]

Pending Washington v. U.S. Supreme Court Decision Offers Hope & Vindication for Tribes, Coastal Fisheries

Truth be told, the U.S. Supreme Court’s 2017-18 Term has been an unsually quiet one for environmental and natural resources law.  Until now.

This week the Supreme Court heard oral arguments in a last-minute addition to the Court’s current docket.  Washington v. United States, No. 17-269, a case the justices only accepted for review in January, looms as the most consequential environmental Supreme Court decision of 2018.  It’s also a fascinating mix of Western American history, Native American law and policy, fisheries protection and environmental justice.

The Washington case has its historical and legal roots in a 164-year old treaty in which the federal government granted Native American tribes in Western Washington permanent fishing rights.  The 1854-55 “Stevens Treaties” (named for the Governor of the then-Washington Territory and Superintendent of Indian Affairs who negotiated the pacts with the tribes on behalf of the federal government) guaranteed the tribes “the right of taking fish, at all usual and accustomed grounds and stations…in common with all citizens of the Territory” in exchange for the tribes’ relinquishment of their claims to 64 million acres of land in Washington in favor of relocation to tribal reservations.

The Washington tribes’ principal concern–both in the mid-nineteenth century and today–has been preserving their access to regional salmon fisheries that have played such a vital role as a tribal food source, means of commercial exchange and for cultural and religious purposes.  As was the case with most nineteenth century government-tribal treaties, the Stevens Treaties turned out to be a bad deal for the Washington tribes.  The fishing rights they’d negotiated were quickly trampled, both by white settlers who relocated in the region and often blocked Native American fishers’ access to the waters of northwest Washington, and by white commercial fishermen who by the end of the 19th century were catching enormous quantities of salmon in the region, leaving precious little fish for tribal members using their more traditional fishing methods and gear.

After Washington was admitted to the Union in 1889, state officials overtly and repeatedly acted to frustrate the tribes’ exercise of their on- and off-reservation fishing rights granted under the Stevens Treaties.  This state of affairs prompted numerous political and legal conflicts in the late 19th and early 20th centuries, including two cases ultimately decided by the Supreme Court–both interpreting the Stevens Treaties in the tribes’ favor.

Fast forward to the late 20th century: the United States, both on its own behalf and as trustee for the Pacific Northwest tribes, sued Washington State in 1970 to address the state-federal/tribal political conflicts and enforce the Stevens Treaties’ fishing clause.  By that time, however, the single greatest threat to tribal fishing rights had become modern technology–specifically, the extensive system of road culverts that the state and its political subdivisions had built to channel rivers and streams underneath the state’s road and highway system.  It’s essentially undisputed that Washington’s road culvert system substantially impedes the migration of salmon both upstream and downstream.  That, in turn, has led to the substantial diminution of salmon populations in western Washington, to the detriment of Native American and white fishers alike.  (It’s also undisputed that technology currently exists by which state and local road builders can avoid this adverse environmental impact by designing road culverts that allow unobstructed fish passage.)

In an earlier phase of this longstanding litigation, a federal district court held–and the Supreme Court ultimately confirmed–that under the Stevens Treaties the tribes have the right to up to 50% of the harvestable fish in the affected region in western Washington.

The latest chapter in this protracted legal saga began in 2001, when the tribes and federal government asked the district court “to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat so that adult fish production is reduced.”  Washington State’s legal response to this claim was straightforward: “there is no treaty-based right or duty of fish habitat protection” as asserted by the federal government and tribes.

The district court ruled in favor of the tribes and U.S., concluding that the fishing clause of the Stevens Treaties imposes a duty on Washington State to refrain from building or operating culverts under state roads that hinder fish passage and thereby substantially diminish the number of fish that would otherwise be available for tribal harvest.  The district judge thereafter held a trial to determine an appropriate remedy, eventually issuing a detailed injunction requiring state officials to inventory all state-owned barrier culverts; take immediate steps to retrofit some of the most damaging culverts; and mandating that the remainder be retrofitted at the end of their useful lives.

The Ninth Circuit Court of Appeals affirmed in a lengthy, unanimous opinion authored by Judge William Fletcher.  The Court of Appeals concluded that by building and maintaining a system of barrier culverts, “Washington has violated, and is continuing to violate, its obligation to the Tribes under the Treaties.”  Rejecting the state’s argument that the government’s treaty obligations do not extend to fisheries habitat protection, Judge Fletcher concluded:

"The Indians did no understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs.  Governor Stevens did not make, and the Indians did not understand him to make, such a cynical and disingenuous argument.”

In its successful petition for certiorari, Washington State argues that its obligations under the Treaties do not extend to providing fish-friendly culverts and road projects; that the federal government is equitably estopped from arguing to the contrary by virtue of having approved some of the offending culverts; and that the injunctive relief granted by the lower courts offends federalism principles and imposes an undue financial burden on the state.

The respective legal arguments advanced in the Washington case have a decidedly through-the-looking-glass quality to them: on the one hand, Washington–normally a progressive and environmentally-conscious state–is taking a quite conservative legal and political position usually embraced by the reddest of red states.  Conversely, the Trump Administration and Justice Department have maintained the same aggressive advocacy in favor of the tribes’ fishing rights and fisheries protection that previous administrations have advanced in the Washington litigation.  (The latter comes as a pleasant and most welcome surprise.)

One other interesting jurisprudential footnote to the case: Justice Anthony Kennedy announced he would recuse himself from the Court’s deliberations in the Washington case after he belatedly discovered that in 1985 he’d participated in an earlier phase of the same litigation while serving as a judge on the Ninth Circuit Court of Appeals.  (Kennedy’s recusal would be more consequential if Washington were a “normal” Supreme Court case in which his vote would likely be decisive; however, the justices’ votes in Native American law cases generally don’t track their normal progressive/conservative voting patterns.)

Early press reports indicate that the Supreme Court’s April 18th arguments did not go particularly well for Washington State.  That’s both unsurprising and a very good thing.  The federal government and the tribes have the better of the legal argument in Washington.  The lower federal courts were quite right to reject Washington State’s argument that its construction of environmentally-damaging infrastructure, responsible for devastating fisheries on which the tribal nations depend, is somehow consistent with its longstanding obligations under the Stevens Treaties.  As Ninth Circuit Judge Fletcher aptly noted, that’s a cynical and disingenuous argument indeed, and one that the Supreme Court should reject.

Ultimately, Washington v. United States is a case about environmental justice, and the obligation of government to live up to both the letter and spirit of its fiduciary duty to Native American tribes under longstanding treaties.  For centuries, government has failed to do so.  Hopefully, the Supreme Court’s decision in Washington–due by the end of June–will follow a different and more just legal path.

April 30, 2018

Jesner v. Arab Bank: The Supreme Court Preserves the Possibility of Human Rights Suits Against U.S. Corporations

by William S. Dodge

[Cross-posted from Just Security]

On April 24, the U.S. Supreme Court decided Jesner v. Arab Bank, a case raising the question whether corporations can be sued for human rights violations, including acts of terrorism, under the Alien Tort Statute (ATS). For a preview of the arguments in the case, see here.

Justice Kennedy delivered the judgment of the Court, writing a broad and rambling opinion that might have foreclosed ATS liability for all corporations. But only Chief Justice Roberts and Justice Thomas joined Kennedy’s opinion in full. Justice Alito and Justice Gorsuch joined only those parts of the opinion that were limited to foreign corporations, and their separate concurring opinions emphasized the differences between ATS suits against foreign defendants and those against U.S. defendants. The four other Justices would have permitted ATS suits against both U.S. and foreign corporations, with Justice Sotomayor writing a devastating dissent on their behalf. So while the Supreme Court dismissed the plaintiffs’ claims against Arab Bank, the question of corporate liability in suits against U.S. corporations remains to be decided.

The ATS gives federal district courts jurisdiction over “any civil action by an alien for a tort only, in violation of the law of nations or a treaty of the United States.” The First Congress passed the ATS in 1789 with the eighteenth century law of nations in mind. But in Sosa v. Alvarez-Machain (2004), the Supreme Court held that federal courts could recognize causes of action under the ATS for violations of modern human rights law that are as generally accepted and specifically defined as the eighteenth century paradigms (infringement of the rights of ambassadors, violations of safe-conducts, and piracy). In Kiobel v. Royal Dutch Petroleum Co. (2013), the Supreme Court applied the presumption against extraterritoriality to ATS causes of action, holding that plaintiffs could only bring suits that “touch and concern” the United States. The plaintiffs in Jesner alleged that Arab Bank, a foreign corporation, had financed terrorist attacks in Israel by funneling money through its New York branch. The Second Circuit dismissed the claims under circuit precedent holding that only natural persons and not corporations can be sued under the ATS.

Framing the International Law Question

Writing only for three in Part II.A, Justice Kennedy seemed to accept the Second Circuit’s framing of the corporate liability question as whether there was a “norm of corporate liability under currently prevailing international law” that would meet the Sosa standard (p. 15). As Justice Sotomayor pointed out in dissent, however, this framing of the question “fundamentally misconceives how international law works” (p. 2). (I should disclose that I wrote the amicus brief of International Law Scholars in Jesner, on which Justice Sotomayor relied in this part of her opinion.)

The dissent correctly observed: “Although international law determines what substantive conduct violates the law of nations, it leaves the specific rules of how to enforce international-law norms and remedy their violations to states, which may act to impose liability collectively through treaties or independently via their domestic legal systems” (p. 3). Thus, Sosa’s requirement of a generally accepted and specifically defined norm of international law refers to norms of “substantive conduct,” not “forms of liability” (pp. 3-4). Because of this distinction, the plurality’s reliance on jurisdictional limits found in the charters of international criminal tribunals (pp. 14-15) was also misplaced, the dissent explained, because it “confuses the substance of international law with how it has been enforced in particular contexts” (p. 8). In other words, limits on jurisdiction are not limits on substantive law. Assuming that the international law prohibition against terrorist financing met the Sosa standard—a question the dissent would have remanded to the Second Circuit to resolve in the first instance—“nothing in international law suggests a corporation may not violate it” (p. 7).

Perhaps because of the power of the dissent, Justices Alito and Gorsuch did not join the part of Justice Kennedy’s opinion claiming that “there is a distinction in international law between corporations and natural persons” (p. 17). And even Justice Kennedy seemed to back away from his own argument in the end, concluding that “the Court need not resolve . . . whether international law imposes liability on corporations” (p. 17-18). This makes Justice Kennedy’s mistaken approach to international law nothing more than dictum in a plurality opinion.

Limiting the Holding to Foreign Corporations

The only analytical parts of Justice Kennedy’s opinion that commanded a majority of the Supreme Court were those invoking separation of powers concerns against creating new causes of action (pp. 18-19) and foreign relations difficulties (pp. 25-27). Significantly each of these parts was expressly limited to suits against foreign corporations. The first concluded with the observation that “absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations” (p. 19). The second said even more explicitly: “the Court holds that foreign corporations may not be defendants in suits brought under the ATS” (p. 27).

The reasons for this limitation to foreign corporations may be found in the concurring opinions written by Justices Alito and Gorsuch. Justice Alito emphasized the foreign relations implications of suits against foreign corporations: “Creating causes of action under the Alien Tort Statute against foreign corporate defendants would precipitate exactly the sort of diplomatic strife that the law was enacted to prevent” (p. 1). In a footnote, Justice Alito expressly stated, “Because this case involves a foreign corporation, we have no need to reach the question whether an alien may sue a United States corporation under the ATS” (p. 3). He could not have been clearer.

As he telegraphed at oral argument that he might, Justice Gorsuch interpreted the ATS “to require a domestic defendant” (p. 6). Here, Justice Gorsuch largely followed the approach of A.J. Bellia and Brad Clark, which I have previously criticized. But of course, this approach to the ATS does not preclude suits against U.S. corporations for violating the law of nations. Justice Gorsuch explained: “It is one thing for courts to assume the task of creating new causes of action to ensure our citizens abide by the law of nations and avoid reprisals against this country. It is altogether another thing for courts to punish foreign parties for conduct that could not be attributed to the United States and thereby risk reprisals against this country” (p. 13). ATS suits against U.S. corporations clearly fall into the former category.

After the Supreme Court’s 2013 decision in Kiobel, my colleague Anupam Chander observed that the impact of that decision would be to free foreign corporations, but not U.S. corporations, from the risk of being sued under the ATS. In a sense, Jesner simply makes this point explicit.

I do not want to be overly sanguine about the prospects for corporate liability in ATS suits against U.S. corporations. Justice Gorsuch wrote that Sosa’s decision to give the ATS continuing relevance by permitting a limited class of human rights claims to proceed was a mistake (pp. 2-5). Justice Alito agreed (p. 3). And even Justice Kennedy strangely suggested that “there is an argument that a proper application of Sosa would preclude courts from ever recognizing any new causes of action under the ATS” (p. 19)—a position that the majority in Sosa (including Justice Kennedy) expressly rejected. ATS suits against U.S. corporations also face a host of other obstacles, from the fact that such corporations often operate abroad through foreign subsidiaries to the standard for aiding and abetting liability. My point is simply that Jesner does not settle the question of corporate liability for U.S. corporations, and such cases constitute the bulk of litigation against corporations under the ATS. 

April 30, 2018

Opinion analysis: Crime-based removal provision is unconstitutionally vague

by Kevin R. Johnson

[Cross-posted from SCOTUSblog]

In the last few years, the Supreme Court has decided a steady number of criminal-removal cases. In light of the Trump administration’s emphasis on the removal of “criminal aliens,” we will likely see even more criminal-removal cases in the future.

Most of the removal cases that have recently come before the court, including Esquivel-Quintana v. Sessions, which was decided last term, have involved ordinary issues of statutory interpretation and deference to administrative agencies. Sessions v. Dimaya, which the court decided today in a 5-4 ruling, is different. The case began as a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been almost wholly immune from judicial review. It was originally argued last term, when the court was short-handed after the death of Justice Antonin Scalia, and the justices ordered reargument, suggesting that they were divided on the merits.

An immigrant convicted of an “aggravated felony” under 8 U.S.C. §1101(a)(43) is subject to mandatory removal and is ineligible for most forms of relief from removal. The definition of “aggravated felony” incorporates by reference 18 U.S.C. §16(b). Section 16(b) defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

A lawful immigrant from the Philippines, James Garcia Dimaya has lived in the United States since 1992. He has two residential burglary convictions, neither of which involved violence. Based on the convictions, the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. The U.S. Court of Appeals for the 9th Circuit overturned the BIA’s order, finding that Section 16(b) was unconstitutionally vague. To reach that conclusion, the court relied on Johnson v. United States, in which the Supreme Court, in a 2015 opinion by Scalia, found that the Armed Career Criminal Act’s similarly worded definition of “violent felony” was so vague as to violate the due process clause.

At oral argument last October, the justices appeared to be divided as to whether this case was distinguishable from Johnson. In the end, that question was at the heart of the disagreement between the majority and dissenting justices.

Relying on Johnson, the court, in an opinion by Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and, in large part, Neil Gorsuch, affirmed the 9th Circuit’s ruling that Section 16(b) is unconstitutionally vague. The court began by noting that to determine whether a person’s conduct falls within the ambit of Section 16(b), “courts use a distinctive form of what we have called the categorical approach.” Rather than assessing whether the particular facts of someone’s conduct pose the substantial risk required under the statute, courts consider the overall nature of the offense, and ask “whether ‘the ordinary case’ of an offense poses the requisite risk.” The court went on to conclude that defining the “ordinary case” under the “crime of violence” provision poses the same vagueness and due process problems, including unpredictability and arbitrariness, as those identified in Johnson. As the court summed it up, “Johnson tells us how to resolve this case.  … [N]one of the minor linguistic disparities in the statutes makes any real difference.”

In a section of the opinion not joined by Gorsuch, a plurality of the court rejected the government’s argument that “a less searching form of the void-for-vagueness doctrine applies here than in Johnson because this is not a criminal case.” Citing the 1951 case Jordan v. DeGeorge, the court noted that “we long ago held that the most exacting vagueness standard should apply to removal cases,” because the penalty of deportation is so severe.

Gorsuch concurred in part and concurred in the judgment. He emphasized at the outset that “[v]ague laws invite arbitrary power.” He defended the originalist foundations for vagueness challenges that Justice Clarence Thomas questioned at length in his dissent, tracing the history of those challenges back to Blackstone’s condemnation of vague statutes and the “tradition of courts refusing to apply vague statutes.” He further noted that the concern with vague statutes was not “confined to the most serious offenses like capital crimes.” Addressing the government’s argument that a more lenient standard of review should apply in civil cases, Gorsuch would have gone even further than the plurality. He suggested that provisions of civil laws should be scrutinized closely for vagueness even outside the deportation context: “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”

Chief Justice John Roberts, joined by Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, dissented. Roberts distinguished Johnson, arguing that “the Court too readily dismisses the significant textual distinctions between §16(b) and the ACCA residual clause.” Even under the exacting “standard applicable to criminal laws,” Roberts maintained, “§16(b) is not unconstitutionally vague.” Unlike the ACCA residual clause struck down in Johnson, “[t]he more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender ‘grave uncertainty about how to estimate the risk posed by a crime.’ And the provision’s use of a commonplace substantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable ‘uncertainty about how much risk it takes for a crime to qualify.’”

Although he agreed with Roberts’ dissent, Thomas wrote a separate dissent to express “doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause.” He further questioned the “categorical approach” to review of the crime-based statutes, and he would have found that the statute was not unconstitutionally vague as applied to Dimaya.

In the end, the majority dutifully applied its holding in Johnson to the immigration laws. The court’s holding is consistent with its recent decisions applying routine approaches, including traditional methods of interpretation and doctrines of deference to administrative agencies, to judicial review of the immigration laws. What is different about Sessions v. Dimaya is that it applies the Constitution to the removal grounds of the immigration laws. In that sense, it continues what could be seen as a recent movement by the court toward applying ordinary constitutional norms in the immigration context. At the end of last term, for example, the court in Sessions v. Morales-Santana held that gender distinctions favoring women over men in the derivative citizenship provisions violated the Constitution’s equal protection guarantee. It remains to be seen whether and how far the court will proceed along this path.

An earlier version of this post suggested that Kennedy and Alito joined the part of Thomas’ dissent in which he expresses “doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause.” Kennedy and Alito joined Thomas’ dissent as to Parts I-C-2, II-A-1 and II-B, but not as to that statement from Thomas’ second paragraph.

April 8, 2018

King Hall Faculty Perform at Annual Aokirama

On Friday, April 6, UC Davis School of Law professors took the stage during the Aokirama (formerly Cardozorama) law school talent show! The student-organized Aokirama, named for the late Professor Keith Aoki, brings together students (and faculty cameos) for a night of skits, talent, and musical performances. One of the biggest hits of the evening was the band Negotiable Instruments, featuring:

  • Professors Angela "Malice Aforethought" Harris, Anupam "Crime Against Humanity" Chander and Madhavi "Patent Infringement"Sunder (faculty vocalists)
  • Professor Rose "Adverse and Hostile" Cuison Villazor (drums)
  • Professor Cappy "Boycott" White (guitar)
  • Professor Carlton "Treason" Larson (piano)   
  • Guest student vocalist, Tyler "So-Not-a-Gunner" Moran (2L)

Professors Lisa Ikemoto and Irene Joe were on stage, as well as Professor Cuison Villazor's daughters.

View the full performance on YouTube

Several King Hall faculty members attended Aokirama 2018

March 26, 2018

Dean Johnson Files Amici Brief in Ninth Circuit DACA Rescission Appeal

Several immigration law professors, including Dean Kevin R. Johnson, filed an amici curiae brief, in the U.S. Court of Appeals for Ninth Circuit appeal by the Trump administration of a district court injunction barring the rescission of the Deferred Action for Childhood Arrivals policy. 

The amici, in alphabetical order included:

The Ninth Circuit will hear oral arguments in the case in May. Steptoe Johnson LLP was counsel for the professors and filed the brief.

March 26, 2018

Digital Realty Trust, Inc. v. Somers: Bad News for Employers, Lawyers and Internal Compliance

by Dennis J. Ventry, Jr.

[Cross-posted from JURIST]

In Digital Realty Trust Inc. v. Somers, the U.S. Supreme Court voted 9-0 to narrow the definition of "whistleblower" under the Dodd-Frank Act of 2010. In particular, the Court ruled that whistleblowers are only protected against retaliation from employers under Dodd-Frank if they report allegations of an employer's securities law violations to the Securities and Exchange Commission (SEC or Commission). Alternatively, whistleblowers who report alleged violations through an employer's internal compliance program without also reporting to the SEC, like Mr. Somers, cannot avail themselves of Dodd-Frank's protections against retaliation.

To date, commentary on the Court's decision has focused on (i) how it will reduce both the absolute number of whistleblowers (by removing the assurance of legal protections against retaliation ) and the percentage of whistleblowers protected against employer retaliation (because the vast majority of whistleblowers report wrongdoing internally before, if ever, reporting to the SEC ); (ii) how the Court refused to defer to the SEC's rulemaking authority pursuant to which it had defined "whistleblower" differently for persons seeking a monetary award under the Dodd-Frank whistleblower statute (which expressly requires reporting to the Commission) versus seeking protection from employer retaliation under the statute (which does not expressly require such reporting) ; and (iii) how the Court summarily declared the statute unambiguousness in a short, two-sentence paragraph.

While these implications of the Court's ruling in Digital Realty Trust deserve highlighting, this blog post explores two unexamined, though no less important, aspects of the Court's ruling. First, while the decision was a win for the employer-defendant in this particular case, it will negatively affect employers more generally and undercut companies' internal compliance programs. Second, the ruling unequivocally harms employee whistleblowers who are obligated by law to report legal violations of employers internally before reporting outside the organization. Chief among these employees are lawyers, duty-bound to report legal violations up the ladder before, if ever, reporting to outside authorities.

Harms Employers and Legal Compliance Programs

The SEC and the companies it regulates have long expressed support for robust internal compliance programs to which employees can report suspected securities law violations.

From the SEC's perspective, deputizing regulated companies to police internal misconduct and promote internal reporting makes eminent sense. Internal reporting, the government argued in Digital Realty Trust, "enables the private sector to screen out meritless claims, and thereby improves the quality of whistleblower tips later brought to the Commission"; it "gives business the opportunity to self-correct without the need for intrusive Commission investigations"; and it "promotes efficient use of both corporate and government resources." The SEC felt so strongly about the benefits of internal reporting that its regulations provided larger awards for whistleblowers who utilize internal compliance procedures, and smaller awards for whistleblowers who interfere with those procedures.

Companies, too, have a vested interest in employees reporting internally before reporting to the Commission. Internal reporting allows employers to (i) remedy improper conduct at an early stage, perhaps before it rises to the level of a violation; (ii) self-report actual violations to the SEC, which can result in leniency in subsequent enforcement actions; (iii) gather sufficient information of the alleged violation in the eventuality of an enforcement action; (iv) promote and reinforce a culture of compliance within organizations; and (v) highlight the significant value that whistleblowers can add to organizations.

As Congress crafted Dodd-Frank and as the SEC drafted regulations to effectuate Congressional intent, support for internal compliance regimes reached a fever pitch. In part, support among regulated entities reflected concern that Dodd-Frank's financial incentives to report wrongdoing would motivate employees to bypass internal reporting channels and go directly to the SEC. Whether motivated by fear of employees reporting out suspected securities-law violations without first alerting the company or a genuine desire to bolster the effectiveness of internal compliance programs, companies rallied around Dodd-Frank's protections against retaliation.

In fact, regulated entities and their representatives urged Congress and the SEC to reinforce internal reporting by providing explicit comfort to whistleblowers that the law would protect them from retaliation. "We recognize the valid concern that some employees will fear retaliation for blowing the whistle," the Association of Corporate Counsel told the SEC. "The solution to that problem is not, however, a scheme to undermine important and effective internal compliance and reporting systems; rather, employees who fear retaliation may rely on the anti-retaliation provision contemporaneously enacted by Congress."

Companies backed internal reporting to such an extent - and Dodd-Frank's complementary anti-retaliation protections - that they pressed Congress and the SEC to make internal reporting mandatory before an employee could report to the Commission. "An internal reporting requirement is unlikely to have a negative effect on the proposed rules," a prominent law firm wrote on behalf of its corporate clients, "as companies would be given a more immediate opportunity to cure or mitigate potential violations and the whistleblower would remain protected by the anti-retaliation provisions in the Dodd-Frank Act."

Ultimately, Congress and the SEC decided not to make internal reporting mandatory. But they included robust protections against retaliation in the Dodd-Frank whistleblower statute.

Or so they thought. The Court's ruling in Digital Realty Trust delivered a blow to internal reporting and internal compliance programs. Its decision that Dodd-Frank whistleblowers must report out allegations of securities-law violations to the SEC to be covered by the statute's anti-retaliation provisions will result in untold numbers of whistleblowers bypassing internal reporting systems and going straight to the Commission.

From the government's perspective, less internal reporting will reduce voluntary compliance and require more enforcement actions. It will also result in over-reporting of alleged violations to the SEC, including a surge in meritless claims that were previously screened out by internal compliance systems. In turn, over-reporting to the SEC will squander precious government resources.

Companies regulated by the SEC are harmed even more directly by the Court's ruling. Indeed, the decision will render companies' internal compliance programs ineffective, undermine the demonstrative benefits of self-policing, increase the number of resource-intensive and intrusive government investigations, and expose employers to rising costs and liability due to undetected securities-law violations.

Harms Employees Duty-Bound to Report Internally

Employees report misconduct through their employers' internal compliance programs for various reasons. Many employees act out of loyalty and want to give their employer an opportunity to vigorously investigate, root out, and remedy the perceived legal violation. Some of these employees are either unaware of or unmotivated by potential financial rewards for reporting legal violations outside their organization. Other employees are required to report internally under their company's code of conduct. And still others are duty-bound to report internally by law and professional ethics.

In the context of U.S. securities law, this last category of employees--those obligated to report legal violations up the corporate ladder--is expansive. Lawyers representing public companies, for example, must report up evidence of a material violation of federal or state securities law or a material breach of fiduciary duty ; registered public accounting firms and their employees must report illegal acts discovered during audits to the audited public company's management ; a mutual fund's chief compliance officer must report material compliance matters to fund's board ; a broker-dealer's auditor must report material inadequacies to the broker-dealer's chief financial officer ; and investment advisers must adopt code of ethics requiring supervised persons to report violations to the chief compliance officer.

The Court's ruling in Digital Realty Trust harms all of these professionals. Specifically, it prohibits them from invoking the anti-retaliation provisions contained in Dodd-Frank in the event they are retaliated against for reporting legal violations internally but before they have a chance to report the violations to the SEC.

For lawyers, the harm is conspicuous and significant. Under the Sarbanes-Oxley Act of 2002 [PDF], lawyers are not just obligated to report certain legal violations up the corporate ladder. They are also required, in the event they receive an inadequate and untimely response from higher-ups, to report to the company's audit committee, an independent committee of the board of directors, or the board itself. Such exhaustive internal reporting takes time. Indeed, plenty of time to be fired for reporting--and continuing to report - the perceived illegal conduct. Worse, studies indicate that retaliation against whistleblowers occurs quickly, typically immediately after whistleblowers report internally.

Meanwhile, lawyers must wait for their clients to respond. And wait. And sometimes wait some more. Even then, their options are limited. Under Sarbanes-Oxley, lawyers can report out evidence of an employer's legal violation only after exhausting all reporting up obligations and, furthermore, only in the event the lawyer reasonably believes necessary to prevent or rectify substantial injury to the employer or investors. Moreover, ethics rules for lawyers in a majority of states provide similar procedures and requirements before a lawyer can disclose a client's legal violation.

In addition, the ethics rules in a minority of jurisdictions further restrict lawyers' reporting out options. In fact, some jurisdictions prohibit lawyers from reporting out financial crimes or non-criminal frauds, leaving lawyers the sole option of withdrawing from the representation. And while there is a good argument (indeed, from the perspective of this commentator, a winning argument) that the rules for attorneys promulgated under Sarbanes-Oxley preempt state ethics rules, that still-unsettled question might offer inadequate assurance for lawyers wishing to blow the whistle on a client's illegal acts by reporting to the SEC.

In the end, the decision in Digital Realty Trust harms lawyers for fulfilling their legal and ethical obligations. By removing statutory remedial protections against retaliation for reporting legal violations internally, it exposes lawyers to retaliatory acts without legal recourse. It thereby undermines Congress's mandate in Sarbanes-Oxley that lawyers report up "evidence of a material violation of securities law or breach of fiduciary duty or similar violation." And it undermines the Dodd-Frank whistleblower statute, which, by way of SEC rulemaking authority, explicitly incorporates Congress's mandate that lawyers report up certain legal violations.

Dennis J. Ventry, Jr., is a Professor of Law at the UC Davis School of Law. His research and academic specialties include tax policy, tax practice, tax filing and administration, legal and professional ethics, whistleblower law, family taxation, and U.S. economic and legal history. Professor Ventry also serves as the chairman for the Internal Revenue Service Advisory Council (IRSAC).

March 13, 2018

Elite hypocrisy about working class white and rural folks? The case of the West Virginia teachers strike

I've been keeping an eye on elite bashing of working class and rural whites for years now, and I published my first article about it as long ago as 2011.  But the election of 2016 brought the disdainful badmouthing by the chattering classes to a fever pitch, and I've occasionally blogged about the phenomenon, including here and here.  

 

One "series" I see on Twitter begins:  "And in today's episode of:  I Bet I Know Who You Voted For..." That is the common  preface to re-Tweets of headlines that could previously have appeared in the "Darwin Awards" or perhaps the petty crime pages of a local paper.  I'm pasting one below.  It re-Tweets a Fox News Tweet that reads "Substitute allegedly brought boxed wine to school, vomited in class."

 

Another re-Tweets this Fox News Tweet:  "Woman charged with choking teen for blocking view at Disney fireworks show."

 

On a related note, here's an item from Instagram just a few days ago, from the account called guerrillafeminism that reads "happy international women's day except the 53% of white women who voted for trump."

 

Pat Bagley, the cartoonist for the Salt Lake City Tribune (whose work I greatly admire, by the way--both cartoonist and paper), has referred to Trump's "idiot followers."  I could provide many more illustrations of this phenomenon.  

 

With that background, you can imagine my surprise--but also delight--when I saw this Tweet from Neera Tanden, President of the Center for American Progress, which bills itself as an

independent nonpartisan policy institute that is dedicated to improving the lives of all Americans, through bold, progressive ideas, as well as strong leadership and concerted action. Our aim is not just to change the conversation, but to change the country.

Despite the "nonpartisan" billing, I see Center for American Progress as clearly left leaning (a good thing in my book!).  Tanden's Tweet reads:

The teachers of West Virginia are heroes.  They deserve good pay and a real raise.  I stand with them. 

 

Now, I don't recall any past Tweets by Tanden blasting Trump supporters, though I do recall some highly critical of Trump.  That's fine by me.  It's a line I've drawn myself--at least in the last year or so (I was a bit less discriminating--a bit more knee jerk--as I reeled in the wake of election of 2016, and I sent off some angry, pejorative Tweets about Trump supporters as a monolithic group).  I now readily take aim at Trump but try to be more thoughtful and circumspect re: Trump supporters.  I'm looking to understand them, trying to listen empathically. (I've got a whole law review article forthcoming about female Trump supporters, delivered as the key note address at the Toledo Law Review symposium in October, 2017,  The Women Feminism Forgot:  Rural and Working Class White Women in the Era of Trump.  I hope to have the text posted soon on my ssrn.com page).

 

But the bottom line is that some things I saw on Twitter about the West Virginia teachers--many sympathetic comments of the sort Tanden shared--had me wondering if the lefties doing this Tweeting realized that many of the folks they were lauding and advocating for had no doubt voted for Trump.  That is, these newfound labor heroes with their wild-cat strike were one and the same with (many) reviled Trump voters.  Some 68% of West Virginians voted for Trump!  Could I possibly be seeing praise for these women--praise from the left?   These are the same women that many lefties on Twitter have said "get what they deserve" if they lose their healthcare (thanks to Trump's effort to dismantle Obamacare) or face further economic decline (thanks, for example, to the long-term consequences of Trump's tax reform law).

 

(Btw, I was at an Appalachian Justice symposium at West Virginia University College of Law in Morgantown from Thursday Feb. 22 'til Saturday Feb. 24th, and I got to see the teachers picketing--and hear the honking in support--first-hand, which was pretty cool.  One of my favorite signs, this published in the Washington Post, is here) 

 

Michelle Goldberg, a relatively new columnist at the New York Times who is writing a lot about gender issues, offered up this column under the headline, "The Teachers Revolt in West Virginia."  She called the strike "thrilling," noting that strikes by teachers are unlawful in West Virginia, which became a right-to-work state a few years ago, and where unions do not have collective bargaining rights. Yet, Goldberg writes,

teachers and some other school employees in all of the state’s 55 counties are refusing to return to work until lawmakers give them a 5 percent raise, and commit to addressing their rapidly rising health insurance premiums.

Goldberg further explains that the "obvious impetus" for action is West Virginia's awful pay of teachers, which ranks 48th in the nation (read more analysis here).  She also discusses the critical role that health care/health insurance plays in the labor dispute:

 In the past, solid health care benefits helped make up for low wages, but because West Virginia hasn’t been putting enough money into the state agency that insures public employees, premiums and co-payments have been increasing significantly.  

Ah, there's that health care problem again, by which I mean you should read this and this, among other sources cited and discussed in that forthcoming Toledo Law Review article. 

 

Having pored over many, many mainstream media reports of white working class Trump supporters in places like Appalachia (you guessed it, all discussed in that Toledo Law Review article!), I was struck that the women Goldberg identified and interviewed did not appear to be Trump supporters.  Quite to the contrary, these women are held out as having responded to Trump's election by becoming part of what is popularly known as "the resistance." I was delighted to learn about and hear from these women, but was Goldberg unable to find any Trump supporters among the striking teachers?  I would very much have liked to have heard their attitudes about the strike, also in relation to their support for Trump.  Did they reconcile the two?

 

Here are excerpts/quotes about the two women Goldberg did feature, Jenny Craig, a special education teacher from Triadelphia (population 811, northern panhandle) and Amanda Howard Garvin, an elementary art teacher in Morgantown (third largest city in the state, home of WVU):

Craig described the anti-Trump Women’s March, as well as the explosion of local political organizing that followed it, as a “catalyst” for at least some striking teachers.

Goldberg quotes Craig:  

You have women now taking leadership roles in unionizing, in standing up, in leading initiatives for fairness and equality and justice for everyone.

Goldberg also quotes Garvin:

As a profession, we’re largely made up of women. ... There are a bunch of men sitting in an office right now telling us that we don’t deserve anything better. 

Oh how I LOVE that quote, not least because it evinces a feminist consciousness.  In the wake of Trump’s election, Garvin added, women are standing up to say: 

No. We’re equal here.

I sure hope Garvin is right that the sentiment and movement are as widespread as she suggests--and as Goldberg implies.  If this is accurate, liberal elites--including feminists--will have to give Craig, Garvin and so many more like them their due.  (Indeed, teacher strikes may be in the works in the equally "red" states of Oklahoma and Kentucky, too).  That will challenge deeply entrenched stereotypes about folks from this region (read more here and here), which will in turn serve all of us quite well.  

 

By the way, the strike succeeded, with the teachers getting what they held out for.  You can find more exciting coverage of the West Virginia teachers strike herehere and here.  And don't miss this by WVU Law Professor and education law expert, Joshua Weishart.  

 

The question that all of this leaves me with is this:  What can the WV teachers strike teach us about how to build and sustain cross-class coalitions, including among whites?  How can these intra-racial coalitions interface with cross-race coalitions for even stronger pacts among progressives? And what role will gender play in that coalition building?  

 

Other hopeful news of change in relation to women and the national political landscape is herehere and here.  

 

March 9, 2018

The Customary International Law of Jurisdiction in the Restatement (Fourth) of Foreign Relations Law

by William S. Dodge

[Cross-posted from Opinio Juris.)

In a recent post, Dean Austen Parrish took issue with some statements about the customary international law governing jurisdiction in the Restatement (Fourth) of Foreign Relations Law. The occasion for his comments was United States v. Microsoft, a case currently pending before the U.S. Supreme Court in which Dean Parrish has filed an amicus brief. I have given my thoughts on the case and on the amicus brief elsewhere and will not repeat them here. In this post, I seek to correct a few misimpressions about the Restatement (Fourth) and the customary international law governing jurisdiction.

First, it may be helpful to sketch briefly the process for producing the Restatement (Fourth). In 2012, the Council of the American Law Institute (ALI) authorized three projects—on treaties, jurisdiction, and state immunity—under the umbrella of the Restatement (Fourth). A team of reporters was assigned to each project. I was made a co-reporter for the jurisdiction project, along with Anthea Roberts and Paul Stephan.

The ALI process begins with a Preliminary Draft prepared by the reporters, which is discussed at a meeting with the project’s counselors, advisers, and members consultative group. Based on this feedback, the reporters prepare a Council Draft, which is discussed at a meeting of the ALI Council. Based on this further feedback, the reporters prepare a Tentative Draft for discussion with the ALI membership at its annual meeting. For the jurisdiction project, three tentative drafts, covering different topics, were approved by the membership and now represent the ALI’s official position. The reporters are currently in the process of combining all the tentative drafts for the three projects together into one volume, which (as indicated below) has resulted in renumbering many of the provisions. Final publication of the Restatement (Fourth) is expected later this year.

On questions of customary international law, the Restatement (Fourth) was blessed with a great deal of expertise from U.S. and foreign lawyers and scholars. Our counselors included three former Legal Advisers of the U.S. State Department, one former Legal Adviser to the U.K. Foreign and Commonwealth Office, and one Judge of the International Court of Justice. Our advisers included designated representatives from the State Department Legal Adviser’s Office. We also had the benefit of a separate international advisory panel of academics and lawyers from outside the United States. A full list of the counselors, advisers, foreign advisers, and members consultative group for the Restatement (Fourth) is here. Not all of these people will agree with every statement in the Restatement (Fourth). The point is that every question of customary international law addressed in the Restatement (Fourth) was vetted with a broad group of U.S. and foreign experts, and the statements about the customary international law of jurisdiction in the Restatement (Fourth) represent the best judgment of the ALI as to what that law is today.

The first misimpression to correct is Dean Parrish’s statement that “the Fourth Restatement does not purport to set out international law.” Quite the opposite is true. Sections 407-413 of the Restatement (Fourth) (Section 211-217 in Jurisdiction Tentative Draft No. 2) restate the customary international law governing jurisdiction to prescribe. Section 432 of the Restatement (Fourth) (Section 402 in Jurisdiction Tentative Draft No. 3) restates the customary international law governing jurisdiction to enforce. The Restatement (Fourth) does not have a corresponding section restating the customary international law on jurisdiction to adjudicate because, as the Introductory Note to Chapter 2 (Introductory Note, Part III, in Jurisdiction Tentative Draft No. 2) observes, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (The Restatement (Fourth) does have a chapter on state immunity, although its focus is U.S. domestic law under the Foreign Sovereign Immunities Act rather than customary international law.)

With respect to jurisdiction to prescribe, Section 407 states the basic rule: “Customary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” Sections 408-413 set forth the most common bases establishing a genuine connection: territory, effects, active personality, passive personality, protection, and universal jurisdiction. These sections discuss foreign practice at length, citing the practice of more than 50 other countries. The specific bases for prescriptive jurisdiction set forth in the Restatement (Fourth) are largely the same as those found in Sections 402 and 404 of the Restatement (Third).

The Restatement (Fourth) does not continue the position of Restatement (Third) Section 403, which stated that customary international law requires an assessment of the reasonableness of exercising prescriptive jurisdiction in each case. As the reporters’ notes to Section 407 of the Restatement (Fourth) explain, “state practice does not support a requirement of case-by-case balancing to establish reasonableness as a matter of international law.” The Restatement (Fourth) does contain a provision on “Reasonableness in Interpretation”—Section 405 in the Restatement (Fourth) (Section 204 in Jurisdiction Tentative Draft No. 3). This is a domestic principle of statutory interpretation, like the presumption against extraterritoriality and the Charming Betsy canon, under which U.S. courts may “interpret[] a statute to include other comity limitations if doing so is consistent with the text, history, and purpose of the provision.”

With respect to jurisdiction to enforce, Section 432 states the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law . . . a state may not exercise jurisdiction to enforce in the territory of another state without the consent of the other state.” To apply this rule, of course, one must determine where enforcement occurs in various situations. When a U.S. court requires a person in the United States to produce information located abroad, as in the Microsoft case for example, does the enforcement occur in the United States or abroad? As the reporters’ notes to Section 431 (dealing with U.S. practice with respect to jurisdiction to enforce) explains, U.S. court orders to produce information located abroad “have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce.” In the Microsoft case, the fact that none of the foreign governments filing amicus briefs—including Ireland—has characterized the warrant in question as an extraterritorial exercise of jurisdiction to enforce seems conclusive.

Dean Parrish directs most of his criticism at the Restatement (Fourth)’s statement that, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Dean Parrish’s says this is inconsistent with the Restatement (Third), but in fact the Restatement (Third)’s position was more ambiguous than is commonly appreciated. Its Introductory Note for the chapter on jurisdiction to adjudicate, the Restatement (Third) admitted “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” It characterized the provisions that followed as “international rules and guidelines.” The substance of Section 421 strongly resembled the U.S. domestic law of personal jurisdiction as of 1986, and the reporters’ notes relied heavily on U.S. practice with some reference to U.K. law and the Brussels Regulation. There was no analysis of opinio juris—whether any of the practice was followed out of a sense of international legal obligation.

An honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity. Some bases for adjudicative jurisdiction are certainly considered exorbitant—tag jurisdiction in the United States or jurisdiction based on the nationality of the plaintiff in France, for examples—but these bases are not considered to violate customary international law. The clearest evidence of this is the Brussels I Regulation (Recast) in the European Union, which prohibits the use of exorbitant bases against defendants from other EU member states, but expressly permits the use of exorbitant bases against defendants from non-EU member states and requires EU member states to enforce judgments against such defendants resting on such bases. If states do not refrain from exercising jurisdiction on exorbitant bases of jurisdiction out of a sense of legal obligation, there can be no rule of customary international law prohibiting their use.

The Restatement (Fourth) of Foreign Relations Law also discusses many rules of U.S. domestic law addressing different aspects of jurisdiction, including the presumption against extraterritoriality, personal jurisdiction, forum non conveniens, the act of state doctrine, the doctrine of foreign state compulsion, and the recognition of foreign judgments. (For an overview written for a private international law audience, see here.) The Restatement (Fourth) also tries to distinguish clearly between rules of domestic law and rules of customary international law, and to state rules of customary international law only when they are supported by state practice and opinio juris. But Restatement (Fourth) does address the customary international law of jurisdiction, and it draws on a deep well of expertise in doing so.