Archive for the ‘Supreme Court of The United States’ Category

S.I. Strong, “Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared”

December 6, 2011

 S.I. Strong (University of Missouri School of Law) has posted “Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared”, North Carolina Journal of International Law and Commercial Regulation, forthcoming/University of Missouri School of Law Legal Studies Research Paper No. 2011-24.  The abstract reads:

Class arbitration is a dispute resolution device that takes certain procedures more commonly seen in judicial class actions and transplants them into arbitration. The mechanism is of great interest in North America right now, with both the U.S. Supreme Court and the Supreme Court of Canada having heard several relevant cases in the last few years.

Despite sharing a similarly liberal attitude toward both arbitration and judicial class actions, the two countries have taken different approaches to the question of class arbitration. However, neither nation has identified a completely satisfactory solution to the problems that arise when mass claims are asserted in the face of an arbitration agreement, suggesting that both states could benefit from a comparative analysis.

This Article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the Article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

 The paper is available for download from SSRN here.

SCOTUS grants cert. in ATS case: Kiobel v. Royal Dutch Petroleum

October 17, 2011

John Bellinger at Lawfare reports that the U.S. Supreme Court has granted certiorari in Kiobel v. Royal Dutch Petroleum. 

Briefly, on September 17, 2010, the United States Court of Appeals for the Second Circuit, in a 2-1 split decision,  ruled that the Alien Torts Statute (ATS) grants U.S. courts jurisdiction over alleged violations of international law by individuals only, not by corporations. Essentially, the majority opinion held that corporations cannot be sued under the ATS for violations of customary international law because “the concept of corporate liability . . . has not achieved universal recognition or acceptance of a norm in the relations of States with each other.”  (Slip op. at 49).

The two issue presented before the U.S. Supreme Court are:

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and

(2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

The Kiobel appeal is joined with Mohamad v. Rajoub which will address the issue:

Whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons

SCOTUS Blog has full coverage, including briefs and documents here and here.

Henry S. Noyes, “The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience”

June 9, 2011

Henry S. Noyes (Chapman University – School of Law) has posted  “The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience”, Villanova Law Review, Forthcoming/ Chapman University Law Research Paper No. 11-20. The abstract reads:

With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief…will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand the meaning and application of judicial experience. The requirement that district courts apply judicial experience to resolve a motion to dismiss is a new part of the federal pleading regime, just like the new plausibility standard. Second, the application of judicial experience – as intended by the Supreme Court – requires district courts to consider information and evidence beyond that alleged in the complaint when resolving a motion to dismiss. Third, and contrary to conventional wisdom, the Supreme Court does not intend the application of judicial experience to involve a subjective analysis of the plausibility of a claim. Instead, the Supreme Court intends district courts to consider a larger, objective body of experience – beyond the subjective experience of any particular district court – with similar factual scenarios. Fourth, the Supreme Court anticipates that the application of judicial experience will require district courts to develop a common law of pleading standards that will vary with the type of claim, the type of claimant, the type of defendant and the alleged factual scenario. The Court has expressly denied that plausibility “require[s] heightened fact pleading of specifics,” but what plausibility means is informed by judicial experience. Sometimes plausibility requires more convincing facts (not more specific facts). Finally, I argue that this new pleading regime that requires the application of judicial experience at the pleading stage – even where it is based on objective information – is inappropriate and inconsistent with the adversarial nature of litigation.

A copy of the article is available for download at SSRN here.

Whither Malicious Prosecution?

March 30, 2011

Over at Simple Justice, Scott Greenfield writes forcefully about the recent U.S. Supreme Court  decision in Connick v. Thompson which overturned a $14 million jury award in a §1983 action. Greenfield provides a summary of the case:

“Petitioner the Orleans Parish District Attorney’s Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland, 373 U. S. 83, by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge….

He then sued the District Attorney, under §1983, for violation of his civil rights under the theory that they prosecutors were not adequately trained in their duty to disclose potentially exculpatory evidence under Brady.  A jury awarded Thompson $14 million.  In a 5-4 decision by Justice Thomas, the Supreme Court took it back.

Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.

Greenfield concludes with rhetorical flourish:

“For individuals, people who have suffered the indignity of their constitutional rights being violated by those given the authority to do horrible things to others, there is a message here:  Who cares?  Most people believe that there is a way, a place, where you can turn if someone in government screws with your rights, that every American has a right, a RIGHT, to go to court to seek a remedy for the harm done them.  Surprise.

For those other individuals, the ones who decry the remedies like suppression that let the guilty free, under the guise that if the police or prosecutors do wrong to any particular person, there must be another way, there isn’t.  This isn’t about enforcing individual constitutional rights.  This isn’t about providing a remedy to an individual for a conceded violation of their constitutional rights.  This is about protecting the government from its own victims by making it nearly impossible to meet the proof demanded.

Do the judges who think Brady is just another joke, that constitutional rights are someone else’s problem down the road apiece, feel even a twinge of concern for the 18 years Thompson spent in prison?  What about the fact that Thompson would have been executed had his investigators not fortuitously found the blood swatch?  Or do they take comfort that the majority of the Supreme Court couldn’t care any more than they do?”

Professor Sherrilyn Ifill, commenting on the oral arguments in Connick v. Thompson laments over how Mr. Thompson became not only a victim but a bystander in his own appeal:

But without question the most disturbing aspect of the argument was the failure of any of the justices over the course of the hour – or either counsel for that matter – to make reference to Mr. Thompson himself, or what he suffered during his 14 years on death row for a crime he didn’t commit. To read the transcript of the argument in this case, is to confront the indifference and cynicism that so often characterizes our society’s response to gross and inhumane constitutional violations in the criminal justice system. A man’s life was stolen because of the unconstitutional conduct of state actors. And still Justice Scalia’s most biting and obnoxious remarks disparaging Thompson’s arguments were greeted by the assembled spectators with laughter.

For this reason, Connick is one of the most important cases the Court will decide this year. We cannot decry the state of criminal violence in some of our cities, without acknowledging how corruption in the justice system contributes to our inability to invest all of our citizens in cooperating with and supporting the efforts of the thousands of honest cops and prosecutors who legitimately seek to protect our communities and serve justice. And these concerns should merit at least a few lines in our nation’s papers as they review the Supreme Court’s work this year. “

It is difficult to reconcile Blackstone’s legal maxim “for every right, there is a remedy” with the stark reality that public prosecutors are effectively above the law.

Consider the Supreme Court of Canada’s earlier decision in Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65, which held “[w]ithin the core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety or in actions for “malicious prosecution…” (at para. 49). Compare this with the Court’s view that “…the Attorney General, after finding that a Crown prosecutor has acted in bad faith, does not have the power to restrict a member’s practice or disbar a member.  An Attorney General can do nothing to prevent a Crown prosecutor from practising law in another area.” (at para. 50).

Then there is the Supreme Court of Canada’s decision in Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9 (S.C.C.) which that held that “a suit for malicious prosecution must be based on more than recklessness or gross negligence. Rather, it requires evidence that reveals a willful and intentional effort on the Crown’s part to abuse or distort its proper role within the criminal justice system.” (at para. 35 per Iacobucci and Binnie, JJ.; emphasis added).

Finally, the Supreme Court of Canada’s decision in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 (S.C.C.) has made proof of “malice” or “improper purpose” altogether quixotic:

[79] In order to prove malice, a plaintiff must, in accordance with Nelles, bring  evidence that the defendant Crown was acting pursuant to an improper purpose inconsistent with the office of the Crown attorney.  As we have seen, in deciding whether to initiate or continue a prosecution, the prosecutor must assess the legal strength of the case against the accused.  The prosecutor should invoke the criminal process only where he or she believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law.  It follows that, if the court concludes that the prosecutor initiated or continued the prosecution based on an honest, albeit mistaken, professional belief that reasonable and probable cause did in fact exist, he or she will have acted for the proper purpose of carrying the law into effect and the action must fail.

[80] The inverse proposition, however, is not true.  The absence of a subjective belief in sufficient grounds, while a relevant factor, does not equate with malice.  It will not always be possible for a plaintiff to adduce direct evidence of the prosecutor’s lack of belief.  As is often the case, a state of mind may be inferred from other facts.  In appropriate circumstances, for example when the existence of objective grounds is woefully inadequate, the absence of a subjective belief in the existence of sufficient grounds may well be inferred.  However, even if the plaintiff should succeed in proving that the prosecutor did not have a subjective belief in the existence of reasonable and probable cause, this does not suffice to prove malice, as the prosecutor’s failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable:  Nelles, at p. 199; Proulx, at para. 35.  Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice.  The third and fourth elements of the tort must not be conflated.”

John Emerich Edward Dalberg Acton (Lord Acton), writing to Bishop Mandell Creighton in 1887 observed that: “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”

Whither malicious prosecution ? Does not “immunity tend to corrupt, and absolute immunity corrupt absolutely”?


My Podcast Interview with Charon QC: Libel Tourism, Free Speech, Social Media and Anonymity

March 12, 2011

Many thanks to Mike Semple Piggot (a.k.a. Charon QC) for today’s podcast interview where we discuss legal topics of shared interest, including a comparison of the Canadian and English Legal systems – Libel tourism – Freedom of Speech – Social Media and internet anonymity. You can listen to the podcast at: Lawcast 180: Antonin Pribetic on Libel tourism, Freedom of Speech and social media

Thanks also to Cassons For and  David Phillips & Partners Solicitors for sponsoring the podcast.

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