The U.S. Supreme Court today released a significant decision on personal jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (No. 10–1491, slip opinion: link). (backgrounder here and here).
The Court unanimously denied the appeal. (more…)
Posts Tagged ‘Supreme Court of the United States’
SCOTUS rejects extraterritorial application of ATS in Kiobel v. Royal Dutch Petroleum Co.
April 17, 2013Matthew Lafferman, “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”
March 13, 2013
Matthew Lafferman (JD Candidate, George Mason University – School of Law) has published “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”, Santa Clara Computer and High Technology Law Journal, Vol. 29, No. 1, 2012. Here’s the abstract:
In Gertz v. Welch, the Supreme Court expanded First Amendment protections to defamation law by requiring a plaintiff who qualified as a public figure to prove a higher burden of proof to recover for damages under a defamation suit. The Court relied on two major rationales to delineate the Gertz doctrine: public figures “voluntarily exposed themselves to increased risk of injury” and had “significantly greater access to the channels of effective communication.” Applying this doctrine to online media poses challenges, specifically when applied to social media platforms. Many scholars have recognized that social media users have equal access to the same basic media features, rendering the Gertz Court’s access-to the-media rationale inapplicable when applied to social media. A 216% rise in defamation suits against Internet users in the last three years alone, due to the recent discovery that most homeowner’s insurance policies cover libel liability, signals an almost inevitable rise in defamation suits that will eventually force courts to face the challenge of applying the Gertz public figure doctrine to social media.
This Comment offers an approach that reconciles the problems of applying the public figure doctrine to social media. This Comment argues that courts should require defendants to overcome certain initial presumptions by clear and convincing evidence before designating a social media user an involuntary public figure or a general public figure. Moreover, when recommending an approach for courts to identify voluntary activity on a social network for limited-purpose public figures, courts should avoid defining mere access to social media as voluntary activity and instead conclude such access is an extension of an individual’s private life. This approach would allow courts to apply much of the currently existing public figure doctrine to social media and help courts avoid the negative legal and policy consequences of abolishing the doctrine altogether.
A pdf copy of the paper is available for download at SSRN here.
Kedar S. Bhatia, “Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”
May 16, 2012
Kedar S. Bhatia (Student-at-law, Emory University School of Law) has posted ”Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”, Emory International Law Review, 2013, forthcoming/Emory Public Law Research Paper. Here’s the abstract:
The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.
This article argues that the Statute should be read as purely jurisdictional, rather than as a hybrid provision granting both jurisdiction and a cause of action. In contrast to the current hybrid model, a strictly jurisdictional view of the Alien Tort Statute would provide a manageable framework for expanding the scope of the statute. Rather than requiring courts to first measure the specificity of international law and then gauge the practical consequences of recognizing a new cause of action, the jurisdictional view would require Congress to make those difficult, complex, and weighty policy decisions. A purely jurisdictional view of the statute adheres more closely to well-established views toward federal common law and also patches many of the problems that have arisen in applying the statute.
Download a pdf version of the article via SSRN here.
Related articles
- SCOTUS grants cert. in ATS case: Kiobel v. Royal Dutch Petroleum (thetrialwarrior.com)
- Murray et al., Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel” (thetrialwarrior.com)
- Corporate Liability under International Law: U.S. and Canadian perspectives (thetrialwarrior.com)
- Corporate liability under the Alien Tort Statute (professorbainbridge.com)
- Another Decision of Interest on the Alien Tort Statute: Flomo v. Firestone (7th Cir.) (lawprofessors.typepad.com)
- Alien Tort Statute Development (druganddevicelaw.blogspot.com)
- Bellia and Clark on Kiobel v. Royal Dutch Petroleum and the Alien Tort Statute (volokh.com)
- Supreme Court Orders Reargument in Alien Tort Statute Case (legaltimes.typepad.com)
- Keitner on Corporate Alien Tort Cases (lawprofessors.typepad.com)
- Supreme Court Eyes Scope Of Controversial Alien Tort Statute (forbes.com)
- Contemporary Practice of the United States Relating to International Law: Brief Note by John R. Crook (westphaliaxxi.com)
- Extraterrritoriality Becomes Focus of Kiobel Supreme Court; Are We Headed for Morrison II? (internationalpractice.org)
- SCOTUS for law students: Torture and jurisdiction (sponsored by Bloomberg Law) (scotusblog.com)
- SCOTUS decision in Mohamad v. Palestinian Authority (lawprofessors.typepad.com)
- More Kiobel Coverage (lawprofessors.typepad.com)
- Alliance for Justice Releases Report on Human Rights Case To Be Argued Before Supreme Court (yubanet.com)
- Ogoni vs Shell: US Supreme Court to re-hear case (vanguardngr.com)
- High court to deliberate on whether rights groups can sue companies for atrocities (foxnews.com)
- The AM Roundup: Holder’s Speech, Alien Tort, Biden Just Says ‘No’ (blogs.wsj.com)
- Justices Skeptical of Bringing Torture Cases to U.S. Courts (blogs.wsj.com)
- Court Seeks Reargument of Alien Tort Statute Case (volokh.com)
- Fourth Circuit Upholds “Derivative” Soveign Immunity, following the D.C. Circuit (internationalpractice.org)
- Argument recap: Downhill, from the start (scotusblog.com)
Zamir and Ritov on “Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation”
June 24, 2011Eyal Zamir (Hebrew University of Jerusalem – Faculty of Law)
and Ilana Ritov (Hebrew University of Jerusalem – School of Education) 
have posted “Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation”. Here’s the abstract:
The basic rule in civil litigation is that the plaintiff carries the burden of proof and the general standard of proof is preponderance of the evidence. The plaintiff prevails if she establishes her case with a probability exceeding 0.5. Drawing on insights from behavioral economics and new experimental findings, this paper makes the following arguments: 1. Since litigants tend to take the status quo as the pertinent reference point, erroneous dismissal of a claim is likely to be perceived as denying the plaintiff deserved gains, and erroneous acceptance of a claim perceived as inflicting undeserved losses on the defendant. Loss aversion thus provides a powerful justification for placing the burden of proof on the plaintiff; 2. Ceteris paribus, inasmuch as the law strives to minimize the total costs of erroneous judicial decisions, loss aversion calls for setting the standard of proof considerably higher than 51%; 3. Notwithstanding the formal rule of 51%, behavioral insights and experimental findings lend support to the hypothesis that the actual standard of proof in civil litigation is higher than 51%. This phenomenon is possibly due to factfinders’ omission bias. Burden of proof is not a mere tiebreaker; it sets a reference point and creates a default effect.
A copy of the paper is available for download from SSRN here.
Fox v. Vice: SCOTUS rules plaintiff must pay fees for frivolous claims only
June 6, 2011I’ve written about the Anglo-Canadian “Loser Pays” Rule for costs indemnification here and here.
The American Rule is considered by Maureen Cosgrove at Jurist-Paper Chase who reports on “Supreme Court rules party must pay fees for frivolous claims alone“ discussing today’s decision in Fox v. Vice , 563 U. S. ____ (2011) (U.S.S.C.).
Fox claimed that he was the victim of dirty tricks during his successful campaign to become the police chief of Vinton, La., and filed a state-court suit against Vice, the incumbent chief, and the town. Fox’s suit asserted both state-law claims, including defamation, and federal civil rights claims under 42 U. S. C.§1983, including interference with Fox’s right to seek public office. Vice removed the case to federal court based on the §1983 claims. Following discovery, Vice moved for summary judgment on the federal claims, which Fox conceded were invalid.
The District Court dismissed the frivolous claims with prejudice and remanded the remaining claims to state court, noting that Vice’s attorneys’ work could be useful in the state-court proceedings. Vice then asked the federal court for attorney’s fees under §1988, submitting attorney billing records (dockets) estimating time spent on the entire suit, without distinguishing time spent between the dismissed federal claims and the remnant state claims. The court granted the motion on the ground that Fox’s federal claims were frivolous, awarding Fox all of his attorneys’ fees in the suit. Although the state-law allegations had not been found frivolous, the court did not require Vice to parse out the work the attorneys had done on both sets of claims and declined to reduce the fee award to account for the remaining state-law claims, noting that both sides had focused on the deemed frivolous §1983 claims.
The Fifth Circuit affirmed, rejecting Fox’s argument that each individual claim in a suit must be held to be frivolous for the defendant to recover any fees, and agreeing with the District Court that the litigation had focused on the frivolous federal claims.
Writing for the unanimous Court, Kagan, J. notes,
Our legal system generally requires each party to bearhis own litigation expenses, including attorney’s fees, re-gardless whether he wins or loses. Indeed, this principle is so firmly entrenched that it is known as the “American Rule.” See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). But Congress hasauthorized courts to deviate from this background rule incertain types of cases by shifting fees from one party toanother. See Burlington v. Dague, 505 U. S. 557, 562 (1992) (listing federal fee-shifting provisions). (at 5)
Justice Kagan adds,
” But the presence of these unsuccessful claims does not immunize a defendant against paying for the attorney’s fees that the plaintiff reasonably incurred in remedying a breach of his civil rights.
Analogous principles indicate that a defendant may deserve fees even if not all the plaintiff’s claims were frivolous. In this context, §1988 serves to relieve a defendant of expenses attributable to frivolous charges. The plaintiff acted wrongly in leveling such allegations, and the court may shift to him the reasonable costs that thoseclaims imposed on his adversary. See Christiansburg, 434 U. S., at 420–421. That remains true when the plaintiff’s suit also includes non-frivolous claims. The defendant, of course, is not entitled to any fees arising from these non-frivolous charges. See ibid. But the presence of reasonable allegations in a suit does not immunize the plaintiff against paying for the fees that his frivolous claims imposed. (at 7)
The District Court and Fifth Circuit decisions were reversed and remanded to the District court to apply the “but for” rule for fee-shifting.
Speaking of frivolous lawsuits, (albeit only involving state-law defamation, intentional infliction of emotional harm and intentional interference with contractual relations claims), Eric Turkewitz in his Affidavit in the Rakofsky v. The Internet litigation has deposed that:
Related articles
- The Texas Cheerleader Case, and the $45,000 Attorney Fees Award (volokh.com)
- Court says victim doesn’t have to pay lawyer fees (seattletimes.nwsource.com)
- Texas Bill Targets Frivolous Lawsuits (online.wsj.com)
- Defense Fees Awarded In Another Failed EEOC Case : Workplace Class … (workplaceclassaction.com)
- A roundhouse kick to frivolous lawsuit (hotair.com)
- Procedure Reforms in Texas — Losing Plaintiffs Now Pay Costs/fees (lawprofessors.typepad.com)
Antonin I. Pribetic
