Archive for the ‘United States Constitution’ Category

Ted Folkman on “Two Modes of Comity”

June 7, 2013

Ted Folkman (Murphy & King, P.C., author of Letters Blogatory) has posted “Two Modes of Comity”, University of Pennsylvania Journal of International Law, p. 101, 2013. Here’s the abstract:

Some have suggested that US courts should not deny recognition and enforcement to foreign judgments on grounds of fraud or a denial of due process in the particular foreign proceeding, as long as the foreign judiciary is systematically adequate. This paper, based on remarks given at the University of Pennsylvania Journal of International Law’s Fall 2012 Symposium, evaluates that suggestion by considering the various kinds of comity that US courts accord to one another, in particular, the comity required by the Full Faith and Credit Clause and the comity a federal court gives to a state court in habeas corpus cases. It outlines the ways in which each of these two models of comity can be a model for US treatment of foreign court judgments, and it considers recent decisions in which US courts have shown a tendency to use a more deferential model of comity when considering whether to recognize foreign judgments.

Download a copy of the paper via SSRN here.

Egypt, You Are No Friend of the Rule of Law

September 18, 2012

Everyone within reach of a keyboard or a tv remote control has likely heard about the recent mob attacks on US embassies in Libya and Egypt—including the murder of Chris Stevens, the US Ambassador to Libya and three others at the Benghazi consulate– following incendiary protests against the anti-Islamic video, “Innocence of Muslims” on Youtube.  I commend readers to the following posts regarding the film producer and convicted fraud artist, Nakoula Basseley Nakoula:

Egypt Independent reports today that an Egyptian court on Tuesday sentenced a Christian Copt teacher to six years imprisonment following convictions for blasphemy against the prophet Mohamed and defamation of President Mohamed Morsy and a plaintiff lawyer:  (more…)

Virgin Islands Lawyer Sues U.S. Government Over Right to Vote

October 7, 2011
Seal of the American Virgin Islands

Image via Wikipedia

I received the following email from St. Thomas, Virgin Islands lawyer, J. Russell Pate of the Pate Law Firm via the ABA International Litigation Committee Listerv:

Dear International Litigation Member,

For your information, please find attached a Complaint [ pdf copy of Second Amended Complaint] regarding the right to vote for Congressional representatives and U.S. President for the United States Virgin Islands.  The United Nations has noted that the islands are a non-self governing territory without the ability to participate in every level of government which has control over them.

www.un.org/en/events/nonselfgovernin/nonselfgoverning.shtml

The Complaint is a strait-forward historical expose of racial discrimination in the U.S. Congress which resulted in the denial of the Virgin Islands (a majority non-white jurisdiction) to be deprived of the right to participate in federal elections.

Sincerely,

Russell

J. Russell Pate, Esq.

The Pate Law FirmRoyal Dane Mall,

2nd Fl.P.O. Box 890St. Thomas , VI 00804

jrbpate@yahoo.com340.777-5270

Office 340.777-5266

Fax 340.227-5299 Cell

www.SunLawVI.com

“Without the jury, there is no justice.”

The pleading makes for very interesting and informative reading. I invite knowledgeable comments from those with experience in U.S. constitutional law on whether the action meets the plausibility standard under the Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)  and Ashcroft v. Iqbal 556 U.S. ___, 129 S.Ct. 1937 (2009).

UPDATED: CTB v. Twitter, Inc. and Unknown Persons: Trying to Flog a Dead Horse

May 22, 2011

Briefly, the underlying case is CTB v. News Group Newspapers Ltd. et al. which is an English High Court Queen’s Bench Division judgment arising from litigation between an “anonymous” English premier league footballer, “CTB” and defendants News Group Newspapers Limited and Imogen Thomas. On 14 April 2011, Mr Justice Eady granted first a temporary injunction prohibiting the naming of the footballer in the media, which injunction was extended on April 21st, 2011. The injunction initially sought to prevent details of an extra-marital relationship between the married footballer CTB and Ms Thomas – from being published in the London newspaper, The Sun and was based on Article 8 of the European Convention on Human Rights, which guarantees an individual’s right to privacy. CTB v News Group Newspapers Ltd et al. [2011] EWHC 1232 (QB) (16 May 2011) is analysed in depth by Edward Craven at Inforrm’s Blog: Case Law: CTB v News Group Newspapers: privacy law and the judiciary.

See also,

Since then, Twitter is abuzz about the news that CTB has commenced another action in the English court, this time against Twitter, Inc.  to disclose the identities of some of its anonymous account holders alleged to have breached Justice Eady’s injunctive order by disclosing the claimant’s identity:. The case is styled: CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814. Read Charles Russell’s CRITique blog for a great summary here.

Unlike some others, I respect the Rule of Law and choose not to identify “CTB” in breach of Justice Eady’s injunctive order, irrespective of whether, in my opinion, any such order is unenforceable contra mundum. (more…)

Missouri Appeals Court reverses registration of Ontario libel judgment

April 19, 2011

The River Front Times reports today on a Missouri Appeals Court judgment, reversing a lower court decision registering an Ontario libel judgment. A pdf link to the Missouri Appeals Court decision is available here.

The parties are first cousins.  The plaintiff/respondent, Ms. Sanchez-Pontigon and her husband, both Ontario residents, sued the defendant/appellant, Ms. Manalansand-Lord and her American publisher for libel arising from statements made in Ms. Manalansand-Lord’s self-published autobiography entitled, “From Fieldhand to Ph.D., Ms. Asia International Motivation for Success and Happiness”, the first chapter of which was posted on the Internet.

No one had appeared on behalf of the Defendants at trial, despite having been given notice by the trial coordinator through email and fax and by plaintiffs’ counsel via email.   In reported reasons: Sanchez-Pontigon v. Manalansand-Lord 2009 CanLII 28216 (ON S.C.), [2009] O.J. No. 2293 (S.C.J.), Quinlan, J. of the Ontario Superior Court of Justice awarded Sanchez-Pontigon $25,000 in general damages and $12,500 as aggravated damages for defamation relating to accusations that the plaintiff was involved in criminal activity, including kidnapping and fraud. The Ontario court also awarded $13,716 in costs.

According to the  Missouri Court of Appeals:

“This “judgment” was filed in St. Charles County, Missouri – Ms. Lord was given notice – and after hearing the Circuit Court granted the registration, from which a garnishment issued.”

Note the quotation marks around the word “judgment”.

Relying on the recently enacted SPEECH Act (see my recent post: UK Libel Reform and the US SPEECH Act: A View from Canada),  the Missouri Appeals Court reversed, and the underlying registration was set aside and the garnishment quashed. The Missouri Appeals Court held that the Circuit Court failed to analyze whether the Ontario judgment met U.S. First Amendment standards of free speech and freedom of the press protection. The Missouri appeals court also refused to give the Ontario judgment “full faith and credit” on the grounds that:

This record does not contain a certified and authenticated copy of the Canadian “judgment” by the Canadian court and thus fails to comply with the full faith and credit clause of the U.S. Constitution. Art. IV § 1, U.S. Constitution. There is simply not enough here to show that this “judgment” is entitled to full faith and credit in a Missouri court. As such, the Circuit Court should not have proceeded to hearing, judgment and execution.

Consequently, the plaintiff was ordered to file a certified and authenticated Canadian judgment in accordance with Missouri procedural law and the Circuit Court’s decision was reversed and remanded for further hearing.

Does this decision portend a retreat from an era of judicial comity into a cross-border “war of the words”? Will Canadian judges take umbrage with their American counterparts refusing to enforce Canadian libel judgments unless they meet American First Amendment standards? Is this another example of American exceptionalism?


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