Last October in Kiobel v. Royal Dutch Petroleum the 2d Circuit federal appeals court rejected a claim by Nigerian citizens that Royal Dutch Shell aided their government in the denial of human rights. A corporation cannot be sued for human rights violations, the majority held, a conclusion vigorously disputed by Judge Pierre Leval who declared
"[t]he majority's interpretation of international law, which accords to corporations a free pass to act in contravention of international law's norms, conflicts with the humanitarian objectives of that body of law."
The plaintiffs' petition for en banc review was denied 5 -5 on February 4. That occasioned passionate concurrences and dissents. Chief Judge Dennis Jacobs denounced the proposition that foreign corporations (rather than individuals) could be sued under the ATS - saying it would be an occasion to "extort" settlements. His language seems to indict our entire system of litigation. Courts, he argues cannot effectively weed out frivolous claims, leading corporations to pay extortionate settlements in baseless cases.
The case has been the subject of wide debate. This week the New Jersey Law Journal Editorial Board added is voice to those of the critics, calling on the Supreme Court to reverse Kiobel. But now another option has appeared: the plaintiffs have filed a second petition for rehearing en banc. Because the first petition for en banc review was denied 5 -5 , the intervening addition of a new judge may tip the balance in favor of review.
The Harvard Law School International Human Rights Clinic is much involved with Alien Tort Statute claims. Their blog has the story and the documents.
The Editorial Board of the New Jersey Law Journal has called upon Associate Justice Roberto Rivera Soto to cease his abstention from voting on decisions of the court or resign:
Copyright ALM Media, LLC (2010) all rights reserved. Further reproduction only by permission of ALM Media, LLC.
We are appalled at the behavior of New Jersey Supreme Court Justice Roberto Rivera-Soto. In two unrelated cases, Henry v. Department of Human Services and Johnson v. Johnson , he has unleashed an unprecedented attack upon the Court on which he sits, unnecessarily and wrongheadedly dragging the Court into the political impasse over appointments between the Republican governor and the Democratic-controlled Senate.
Worse, in refusing to acknowledge the legitimacy of the Court's majority conclusion that temporary assignments of judges to fill vacancies are permitted under the state constitution even when there is a quorum, he has declared the Court's composition to be illegitimate and unconstitutional and has announced he will abstain from future votes as long as the appointee in question, Judge Edwin Stern, sits with the Court. His actions go far beyond the bounds of legitimate disagreement among appellate judges
The New Jersey Constitution's Temporary Assignment Clause, art. VI, § 2, ¶ 1, allows the chief justice to appoint a replacement justice "when necessary." Reasonable minds can differ whether that language means that appointment can be made whenever there is a vacancy or only when there is a lack of a quorum. Since the Court's inception in 1948, chief justices have made hundreds of these appointments, most of them when the Court had five or more sitting members and a quorum was not at issue. We recently agreed with the Court's interpretation that temporary assignments could be made to fill any vacancy and argued that this should be done consistently to avoid tie votes.
However, we strongly disagree with the academic argument on which Justice Rivera-Soto relied, which is that "when necessary" means only when essential to create a quorum so that the Court may act. From the earliest days of federal constitutional law, it has been understood that "necessary" is a broad grant of power to act when useful or desirable, rather than a limitation to act only when essential. The drafting history of the Temporary Assignment Clause, set out in Chief Justice Stuart Rabner's concurrence in Henry , demonstrates that the framers of the 1947 constitution understood "necessary" as a grant of power rather than a limitation, which is consistent with their overall intent to create a powerful and autonomous judiciary. While there is a place for honest debate on the point, there is none for acting above the law.
History shows us that angry and frustrated dissenters can attack not only the reasoning but also the intellectual honesty of their colleagues. Had Justice Rivera-Soto simply issued a reasoned dissent — even a vehement and personally offensive one — critical of appointing judges to vacancies on the high court when there was no lack of quorum, he would have been well within the bounds of judicial behavior. But his "abstaining opinions" go far beyond what is proper in two respects.
First, he issued a broadside accusing the chief justice and the majority of the Court of taking sides in the political impasse between the governor and the Senate over the nomination of Anne Patterson to replace Justice John Wallace Jr. by appointing Judge Stern, the senior appellate judge, to fill the vacancy temporarily. Second, he attacked the legitimacy of his own institution, refusing to abide by the decision of the majority with which he disagreed and announcing a sit-down strike, refusing to act while Judge Stern sits.
When one strips away the veneer of legal argument about the Temporary Assignment Clause, it is clear that Justice Rivera-Soto's main argument is that by easing the Court's workload, assuring a tie-breaking vote and adding a seventh member, the chief justice's action emboldened the Senate Democrats to continue their refusal to consider the Patterson nomination. Justice Rivera-Soto is wrong. The Senate does not have a duty, as he implies, to accede to the governor's nomination or even to consider it. Its duty to advise and consent includes the power to exercise independent political judgment, albeit negative, as to the Court's future composition. There is no obligation to fill vacancies until the two political branches reach agreement.
In the meantime, the Court's business must be carried on. The chief justice's power to empanel a full court and to keep it functioning strengthens the Court's autonomy in the face of the impasse between the other branches. "The appointing power of the Executive and the Legislature's role in passing on nominations is not the business of this Court, although our 'abstaining' colleague has made it his business," Justice Barry Albin wrote in his Johnson concurrence. "It is our 'abstaining' colleague who has needlessly politicized an independent, nonpartisan decision by the Chief Justice, and he alone bears responsibility for the collateral damage done to the image of the judiciary."
Most importantly, Justice Rivera-Soto is wrong because he has defied the fundamental principle that a majority decision of the Court is binding unless and until reversed by another majority. The Temporary Assignment Clause has been interpreted by a majority of the Court in accord with the practice under five previous chief justices and now decided by a majority of the Court, and that interpretation is the law until changed by the regular process of the law. It is Justice Rivera-Soto's duty to respect the decision of the majority, however much he may disagree, and to abide by that decision. He announced inJohnson that he would continue to participate in argument and issue opinions, but would not vote.
His refusal to perform the duties of his office — while still drawing his salary — is a direct attack on the legitimacy of the institution on which he sits. His verbal attack denouncing the "tyrannical majority," for insisting he follow the rule of law and do his duty as a justice by fully participating, calling opinions critical of him "prattle," further belittles his position and makes it appear as if he is waving his newly unveiled "strict constructionist," confrontational persona as if it were an updated résumé for reappointment, if not a blatant appeal to a wider audience where such strident absolutism is immensely popular.
There have already been calls for Justice Rivera-Soto's resignation, and even for his impeachment, for refusing to do his appointed duty and vote on cases. This is not the first time Justice Rivera-Soto has brought the Court into disrepute, having been reprimanded for his use of his position in advancing his son's cause in a dispute at a public school, and having violated an order sealing evidence in a criminal appeal. He has now further damaged an institution already anxious over the prospect of future partisan intrusion.
We believe that his presence on the Court, which he has so disrespected by his refusal to vote and abide by the majority, will inevitably distract from the Court's business if he continues his course of conduct. There is room on every court for contrary opinions, and Justice Rivera-Soto, aside from the majority decisions he has written, has served an important role in writing many dissents and challenging the majority in the course of substantive legal discussion. But however important his role has been, if he cannot reconcile himself to respect the majority's decision and perform his duties as a justice, he should resign.
Image: Umar Farouk Abdulmutallab, right, stands before Magistrate Judge Mark A. Randon in federal court. www.sulekha.com
How should we treat those arrested here - like the apparent perpetrator of the abortive Christmas bombing on a Detroit-bound flight? Like soldiers? Ordinary criminals? Or some other sort of person - an `unlawful combatant', perhaps? The Fourteenth Amendment says they are persons and as such are subject to our constitutional regime. The Editorial Board of the New Jersey Law Journal concurs with the approach embraced by U.S. Attorney General Eric Holder.
'Unlawful Combatants' Have Miranda Rights
New Jersey Law Journal
March 26, 2010
Criminal, soldier or unlawful combatant? That trichotomy frames the current hyperbolic debate about the Christmas Day bomber and his Miranda rights. The critics assert that a governmental policy of treating prisoners like Umar Farouk Adbdulmutallab as criminals within the criminal justice system is being soft on terror. We are "at war," we are often told.
The "we are at war" stance was problematic from the first. That is because the 1949 Geneva Convention III relative to the Treatment of Prisoners of War requires in Article 13 that prisoners of war "must at all times be protected, particularly against acts of violence or intimidation." The Convention in Article 14 states that such prisoners are to be "entitled in all circumstances to
respect for their persons and honor."
Therefore, when the Bush administration formulated its policy, it declared that terrorists are not prisoners of war but instead are "unlawful combatants" not entitled to review by any court of the United States. And, impliedly, as unlawful combatants, not entitled to respect for their persons and honor.
We are told that treating the apparent perpetrator of the failed airplane bomb plot as a criminal is a sign of weakness, although nearly 200 persons accused of terrorist acts were so treated in the Bush-Cheney years. The strongest appeal is that the accused has been given rights to which he is not entitled — the right to silence and the right to counsel. The suggestion is that telling Abdulmutallab he has the right to remain silent and to counsel deprived us of information he otherwise would have given. We are aware of no evidence for such a statement.
Attorney General Eric Holder has responded in a sharply worded letter to Senate Minority Leader Mitch McConnell, in which he elaborates:
"Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer.
"Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system."
We concur.
This editorial was published in the March 29, 2010 issue of the New Jersey Law Journal. Copyright 2010. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
"The idea is to prevent . . . the great railroad companies, the great insurance companies, the great telephone companies, the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests as against those of the public. It strikes at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government."
Elihu Root (above left) , at the New York State Constitutional Convention, 1894
cited by Justice Frankfurter (below left) in United States v. United Automobile Workers, 352 U.S. 567 (1957)
The Editorial Board of the New Jersey Law Journal has sharply rebuked the United States Supreme Court decision in Citizens United v. Federal Election Commission, which declared that corporations have the same right to spend money on electioneering as do natural persons. The Board embraces the observation of senior Justice John Paul Stevens who spoke from the Supreme Court bench in dissent:
"The Court's opinion is a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporation electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money and politics."
Stevens was joined by Justices Breyer, Ginsburg, and Sotomayor.
Explaining its own view the Law Journal Editorial Board wrote:
The U.S. Supreme Court recently overruled two recent precedents to invalidate federal-election-law preclusion of direct corporate expenditures in support or in opposition of candidates, essentially because the 5-4 majority in Citizens United v. FEC , refused to draw the long-established distinction between individuals and corporations.
Contrary to the fundamental purpose of the First Amendment, this sweeping decision will likely undermine democracy, not bolster it.
The Court ignored the obvious differences between individuals and corporations that affect their participation in elections. Corporations cannot vote or "speak" and possess no conscience, feelings, thoughts, beliefs or desires. They have perpetual life, enjoy separation of ownership and control, are given favorable treatment for the accumulation and distribution of assets, may be foreign-controlled and can acquire greater wealth than individuals.
Corporations are single-track vehicles to profit from the sale of goods and services. They finance Democrats, Republicans, conservatives, liberals and even all of the above, so long as their profits are enhanced. Individuals may be persuaded to support political candidates for the good of the country; corporations are unlikely to be so persuaded.
The Court's ruling overrides laws that have been on the books for more than 100 years, as well as decades of campaign finance jurisprudence, which have recognized that society's interest in avoiding corruption and the appearance of corruption justifies regulating corporate expenditures in support or opposition of candidates.
The balance of the editorial may be found HERE.
The Board observes, as did President Obama in the State of the Union address, that the court has uprooted 100 years of efforts to regulate corporations political activity. So intense was the sentiment a century ago that President Theodore Roosevelt declared in his December 1905 message to Congress, a year after his election
"All contributions by corporations to any political committee or for any political purpose should be forbidden by law."
105 years later the United States Supreme Court has declared government may not do what Roosevelt sought. Corporations, the Court decided, just like natural persons, are free to speak whenever they want by spending money to support or oppose a candidate for office. - GWC
