Archive for the ‘Tort Law’ Category
posted by Gerard Magliocca
Authorities in Boston have set up a fund (supported by voluntary donations) to compensate the victims of the bombing last week. Ken Feinberg, the man who administered the 9/11 Fund and the BP Disaster Fund among others, has been called in to help with this one too.
We need more scholarship and regulation of this trend in tort compensation. While there are advantages in setting each of these funds up as an ad-hoc arrangement and using the expertise of a single individual, drawing up a model statute for states to enact that would create a basic framework for these funds when they are necessary would be better over the long run.
posted by Gerard Magliocca
Wrongful birth cases present many challenging issues. Since I talk about this doctrine every time that I teach Torts, I was surprised to realize recently that I have never posted about this. For those who do not know, “wrongful birth” refers to a cause of action brought because of an unwanted pregnancy caused by medical malpractice or defective birth control. Suppose that a vasectomy is done negligently, or a woman gets the wrong pills, etc. The doctor, pharmacist, or pharmaceutical company could be liable. The really difficult question is–for how much?
One possibility is that the wrongdoer is liable for the cost of an abortion. If you don’t get one, the argument goes, then you are not acting reasonably to mitigate damages. No state takes this view. It is easy to see why. That would be pressure to have an abortion, which would be intolerable for many people.
Another option, which is the law in some states, is that any liability extends for only the costs of the pregnancy. (By costs, I am including emotional distress and other intangible damages.) One thought here is that adoption is what you must do to mitigate damages. Or you could say that a child goes from “unwanted” to “wanted” once the parents accept responsibility for raising the baby, which breaks the chain of causation. The adoption question is interesting because I don’t know of a religious objection to giving up a child for adoption, yet people feel uncomfortable with the idea of making adoption into a legal duty.
A third alternative, also the law in some states, is that liability extends beyond birth to reasonable child-rearing expenses until the kid turns 18. This would say, in effect, that adoption is not necessary mitigation and that rearing a child does not break the chain. Estimating the damages in such a case, though, is really speculative. Moreover, there are benefits to raising a child. How do you calculate that?
Finally, you could say something like the following, which is also done in some states: ”You only get damages after birth only if the child suffers from some disability that imposes a special financial burden on the parents.” Calculating the damages is still tricky, but this does acknowledge that this situation is materially different from the usual one.
There is no clear answer to this dilemma, though I’d be curious to hear what people think about the different approaches that states take.
UPDATE: In the original post, I said “wrongful life” when I meant “wrongful birth.” Fixed now.
posted by Ryan Calo
I got the chance to testify at a hearing of the full Senate Judiciary Committee about the domestic use of drones yesterday. The New York Times has this coverage and, for aficionados of torts, I talk about intrusion upon seclusion with Senator Dick Durbin in this clip from NBC News. Should you get a chance to watch the hearing in full, Senator Al Franken’s thoughts at the end were particularly vivid. My written and oral comments were similar to those outlined in my previous post: privacy law places few limits on the use of drones for surveillance, but we should be very careful in crafting any drone-specific legislative response. It happens that, about when I was testifying, my students were taking a final where one of the questions involved a drone filming a private party. I feel they had fair notice that this might be on the exam.
posted by Gerard Magliocca
I’m going to do some posts on 3D printing this week, some of which relate to the paper that Deven and I are writing. This one deals with product liability.
As I’ve said before (to great consternation), state product liability law is basically a dead field. In large part, this is because of federal preemption. But the growth of 3D printing, like other technological changes, may bring the common law back into vogue because Congress will not get its act together quickly to regulate this field.
Here’s the basic issue. In a world of 3D printing, anyone could be a manufacturer. Let’s say I make something from scratch in my 3D printer at home and that product (a toy, a cookie, a tool, a spare part) injures someone. Should we apply the same principles of product liability to that person that we would to a firm? Yes and no, I think. We probably won’t require individuals to put warnings on what they make, but we may say that a design or manufacturing defect should lead to strict liability. Or would we say that a negligence standard should apply to homemade products?
Now try this one on for size. I upload a file that will make some something to a website. Someone downloads my file, makes the item, and this injures someone. Is the author of the file on the hook for a design defect claim? What about the website? While this could depend on a number of factors, courts will again need to think hard about how product liability rules should be adapted to this ecosystem.
We’re not there yet, but it’s coming.
posted by Frank Pasquale
I was honored to see Prof. John Banzhaf weigh in on a recent post on wellness programs. That post suggested parallels between the addictiveness of tobacco, and that of many food products. Little did I know the NYT was about to publish a blockbuster article on exactly that issue:
[In a 1999 meeting of food industry leaders,] [t]he first speaker was a vice president of Kraft named Michael Mudd. . . . As he spoke, Mudd clicked through a deck of slides — 114 in all — projected on a large screen behind him. The figures were staggering. More than half of American adults were now considered overweight, with nearly one-quarter of the adult population — 40 million people — clinically defined as obese. Among children, the rates had more than doubled since 1980.
Mudd then did the unthinkable. He drew a connection to the last thing in the world the C.E.O.’s wanted linked to their products: cigarettes. First came a quote from a Yale University professor of psychology and public health, Kelly Brownell, who was an especially vocal proponent of the view that the processed-food industry should be seen as a public health menace: “As a culture, we’ve become upset by the tobacco companies advertising to children, but we sit idly by while the food companies do the very same thing. And we could make a claim that the toll taken on the public health by a poor diet rivals that taken by tobacco.”
Illustration: Via Engadget article on interactive ad patents.
posted by Danielle Citron
Last week, a group of women filed a lawsuit against the revenge porn site Texxxan.com as well as the hosting company Go Daddy! Defendant Texxxan.com invites users to post nude photographs of individuals who never consented to their posting. Revenge porn sites — whether Private Voyeur, Is Anyone Down?, HunterMoore.tv (and the former IsAnyoneUp?), or Texxxan.com — mostly host women’s naked pictures next to their contact information and links to their social media profiles. Much like other forms of cyber stalking, revenge porn ruins individuals’ reputations as the pictures saturate Google searches of their names, incites third parties to email and stalk individuals, causes terrible embarrassment and shame, and risks physical stalking and harm. In the recently filed suit, victims of revenge porn have brought invasion of privacy and civil conspiracy claims against the site operator and the web hosting company, not the posters themselves who may be difficult to find. More difficult though will be getting the case past a Rule 12(b)(6) motion to dismiss.
In this post, I’m going to explain why this lawsuit is facing an uphill battle under Section 230 of the Communications Decency Act and why extending Section 230′s safe harbor to sites designed to encourage illicit activity seems out of whack with the broader purpose of CDA. In my next post, I will talk about cases that seemingly open the door for plaintiffs to bring their suit and why those cases provide a poor foundation for their arguments.
Does Section 230 give revenge porn operators free reign to ruin people’s lives (as revenge porn site operator Hunter Moore proudly describes what he does)? Sad to say, they do. Read the rest of this post »
posted by Ryan Calo
We recently covered proof of negligence in my torts class at the University of Washington. I gave my students an optional assignment: write a haiku about the reading (pages 238-67 of the 12th edition of Prosser). Here is sampling of their efforts, complete with kigo. Enjoy!
Winter is coming
Dangerous like icy roads,
Bananas and grapes.
No—don’t cry, they said
Not over milk that’s been spilled
but K-Mart will cry
Fall’s weary pattern
Of darkness, of rain and death
It speaks for itself.
posted by Gerard Magliocca
Now that the election is over, I can finally blog about Michael Jackson. A civil suit was filed by Jackson’s estate against Conrad Murray, who was convicted of criminal wrongdoing in Jackson’s death. Murray’s most intriguing defense is that Jackson’s death was actually beneficial to the estate and thus there was no overall harm to his family.
It can be true that a celebrity will earn more dead than alive. That possibility seems to rest largely on how the person died (was it notorious?) and whether they died young. Going one step further and saying that this marginal gain outweighs the loss of consortium that family members suffer is something that, as far as I know, no court or jury has taken. In Jackson’s case, the calculation is complicated by the fact that he was (apparently) a spendthrift, and thus his net income was also boosted once he died because he was no longer spending the money. So what do you think? Can this defense succeed?
posted by Kyle Graham
This past summer, I spent a few weeks down at the Huntington Library in Pasadena, which houses Los Angeles County’s court records for the years 1850 to 1900. There, I perused the Los Angeles District Court’s civil case files for the 1850-1859 time frame. (The district court of that era functioned as a state superior court does today.) I wanted to see what, if any, personal-injury actions were filed during that span—the Paleozoic Era of tort law—in what was (at the time) a very small, somewhat sleepy community.
The unsurprising answer: There weren’t a whole lot of personal-injury cases back then, at least in the district court. Out of the hundreds of case files that I reviewed, I didn’t come across even a single personal-injury case that sounded in negligence; there were four such cases that involved batteries or assaults. Debt-collection actions provided the vast majority of the district court’s docket. Other recurring case types included petitions for divorce; personal-service and other contract disputes; efforts (for naught) to recover on gambling debts; suits over horses, cattle, and timber that today, would sound in conversion or trespass to chattels; and a hodgepodge of other matters.
I wasn’t particularly surprised by the dearth of personal-injury lawsuits sounding in negligence. For one thing, there weren’t a whole lot of negligence lawsuits of any type, anywhere, back then, and there certainly wasn’t a robust infrastructure of caselaw and treatises that might advise small-town attorneys about how they should pursue a personal-injury claim sounding in negligence. Consider, for example, this 1852 New York legal formbook. The book includes draft complaints that allege claims for breach of promise to marry; “for keeping a dog used to bite mankind”; for criminal conversation with one’s wife; for debauching one’s daughter or servant; for assault and battery; and for false imprisonment–but nothing (aside from the vicious-dog suit, perhaps) that indicates how a negligence personal-injury suit should be alleged. Furthermore, 1850s Los Angeles wasn’t exposed to some potent harm-creating agents that would provide grist for the personal-injury mill (and catalyze claim consciousness among potential plaintiffs) in the decades to come. Among them, Los Angeles County wasn’t served by a railroad at the time, it didn’t boast other heavy industry, and it didn’t have the steamboat traffic that, say, Sacramento did.
I’m a torts partisan, but I still found the case files interesting. For one thing, depositions were a heck of a lot shorter back in the days before typewriters; the need to have a local notary transcribe the proceedings by hand apparently placed strict de facto limits on litigants’ ability to wear out a deposition witness with questions. Complaints were short and to the point, too, at least for the most part. Also, I wondered about the consequences of, or possible gamesmanship associated with, some local attorneys’ utterly inscrutable handwriting.
In case any of you are wondering how an 1850 tort case was pled, the following represents the entirety of a complaint (minus the caption and signatures) drafted by local attorneys and filed with the Los Angeles District Court that year:
Your petitioner George W. Robinson a resident citizen of the state and county aforesaid and plaintiff in this suit complaints of Jose Lugo, a citizen of the State of California and of the County of Los Angeles and Defendant in this suit for that whereas heretofore to wit on the 20th day of July AD 1850 in the county of Los Angeles and State of California the said Defendant with force and arms to wit with pistols [lassoes?] + guns then and there assaulted and violently beat the said plaintiff in his person inflicting upon him the said plaintiff [?] and various wounds and bruises to wit four severe wounds on his head four wounds on his right arm four wounds on the left arm ten wounds on the body ten wounds on the right led ten wounds on the left leg whereby and by reason whereof the said plaintiff was greatly injured suffered much pain and loss of blood was put to great expense in paying physicians to effect a cure of the aforesaid wounds and suffered much loss of time being unable by reason of said wounds to pursue his lawful and necessary business as he otherwise could and would have done and also put him the said plaintiff to much other trouble expense pain and inconvenience by reason of the aforesaid assault and battery, whereby and by reason whereof the plaintiff avers that he has been damnified and hath sustained damage to the amount of ten thousand dollars the said plaintiff further complains and states unto the Court that at the time and place aforesaid the said plaintiff then and there being a free citizen of the State of California and having a free full and perfect right to enjoy his liberty he the said Defendant then and there willfully maliciously and without any just or reasonable cause whatsoever with force and arms and deadly weapons (and without and legal process whatsoever) pursued seized upon and bound with cords the person of the Plaintiff thereby [?] him the said plaintiff of his liberty for a long space of time to wit for the space of three days whereby and by reason of the premises the plaintiff avers he was put to great pain and trouble in body and in mind as well as great inconvenience and loss of time whereby and by reason of the premises he avers that he has been damnified and hath sustain and demands of defendant damage to the amount of twenty thousand dollars and therefore he brings suit.
posted by Kyle Graham
This is the second of two posts discussing a case that will be argued before the California Supreme Court next month, Nalwa v. Cedar Fair, LP. The Nalwa case presents the issue of whether the doctrine of primary implied assumption of the risk (PIAoR) applies to shield the operator of a bumper-car ride from liability for accidents associated with head-on “bumps.” In this post, I’ll describe the legal backdrop for the PIAoR issue before the Nalwa court, and then discuss how the court might perceive the case.
1. Assumption of the Risk Hits a Fork in the Road
All current and former Torts students know about the hoary doctrine of assumption of the risk; members of the lay public also intuit its basic contours. In the past, the basic notion behind assumption of the risk was that, notwithstanding the existence of a duty of care owed by a defendant to the plaintiff, if the plaintiff voluntarily confronted a known risk created by the defendant, that plaintiff could not complain later on, when that risk manifested itself in a rather unpleasant way. Volenti non fit injuria, as Cardozo wrote in the most famous of all assumption of the risk cases, Murphy v. Steeplechase Amusement Co.
The doctrine was moribund in California when, in 1992, when the California Supreme Court breathed new life into it—albeit in a somewhat different form than it previously had taken.
posted by Kyle Graham
Must an amusement-park operator take reasonable, or even utmost, precautions to protect patrons from injuries associated with bumper-car “bumps”? This past week, I met with the attorney for the plaintiff in an interesting assumption of the risk case that raises this issue, and will be argued before the California Supreme Court next month.
(Full disclosure: I offered the attorney my thoughts regarding the case, and accepted in return exactly what these thoughts are probably worth: nothing. OK, he did kindly agree to give an impromptu guest-lecture to my Torts class. Second full disclosure: you know my prior, short guest posts? This is the opposite of those. To spare readers—a little—I will divide this post into two segments.)
One of the issues presented in Nalwa v. Cedar Fair, LP concerns whether the doctrine of “primary implied assumption of the risk” (hereinafter PIAoR) applies to shield the operator of a California amusement park from liability for an injury that results from a bumper-car collision at the venue. As I’ll discuss in my next post, the California Supreme Court may perceive this case as a one-off, and issue a ruling narrowly tailored toward bumper-car rides. On the other hand, particularly since the court has added two new members (Chief Justice Cantil-Sakauye and Associate Justice Liu) since its last big PIAoR case of this sort, it also might see the case as a good vehicle (rim shot) to clarify the blurry boundaries of PIAoR in California.
I’ll summarize the case and its procedural history after the jump.
posted by Danielle Citron
What are we really teaching our students? Those of us who complain that our students are too focused on learning rules and doctrines should read a provocative empirical study recently published on SSRN by my colleague Don Gifford, Villanova sociologist Brian Jones, and two of Don’s former students with expertise in statistical analysis, Joseph Kroart and Cheryl Cortemeglia. Donald G. Gifford, Joseph Kroart, Brian Jones & Cheryl Cortemeglia, What’s on First?: Organizing the Casebook and Molding the Mind, 44 Ariz. St. L.J. ___ (2013) (forthcoming). The article describes an empirical study suggesting that whether the Torts professor begins with intentional, negligent, or strict liability torts affects the students’ understanding of the role of the common-law judge in a statistically significant way. The authors argue that the judge’s role in deciding intentional tort cases is at least to some extent more rule-based than her role in negligence and strict liability cases. Applying the work of sociologist Eving Goffman, they posit that beginning with intentional torts frames the judicial role in this manner. Further, they hypothesize that once frequently anxious first-semester students latch onto one particular conception of the judicial role during the initial weeks of the semester, it becomes anchored and resistant to change even after the students have studied other categories of tort liability.
Gifford et al. surveyed more than 450 first-year law students at eight law schools that vary widely in terms of their
reputational ranking. The students were surveyed at the beginning, middle, and end of the first semester. The survey results supported the authors’ hypothesis that students who begin their study of Torts with strict liability experience a greater shift toward understanding the judge’s role as being influenced by social, economic, and ideological factors and a sense of fairness and less as a process of rule application than do students who begin their study with either intentional torts or negligence. Even when the authors controlled for the ranking of the law school, topic sequence still generated a significant effect on students’ perceptions of the role of the common law judge. Nor did the effect of topic sequence vary by gender. The authors were surprised to find that students who began with intentional torts experience a greater attitudinal shift toward perceiving the judicial role as being policy influenced than do students who began with negligent torts.
Despite their disclaimers, the authors implicitly criticize the overwhelming majority of Torts professors who begin with intentional torts. Most Torts casebooks begin with intentional torts, at least after a brief introductory chapter. Their editors claim that these cases are “accessible,” “memorable,” and provide “a nice warm up” for studying other torts. Some of these same editors admit that intentional torts comprise a “backwater” in modern tort practice. Gifford et al. suggest that the real reason for beginning with intentional torts may be because that is the way it always has been done. They note that the first Torts casebook, edited by James Ames Barr, Dean Langdell’s colleague, began with intentional torts. They provocatively suggest that Ames may have begun with intentional torts in part precisely because these torts were most rule-like in nature and furthered Langdell’s mission to make the law appear “scientific” in order to justify its inclusion within the university curriculum. If this is true, note the authors, then most modern-day Torts professors are “unwitting conscripts” in the Langdellian mission. Read the rest of this post »
posted by Kyle Graham
Among the bloggers on this site, it probably falls to me to discuss the spate of hantavirus cases tied to Camp Curry in Yosemite National Park. I’m a former park ranger, I used to live on Yosemite’s eastern shoulder, and I have some personal experience with hantavirus and related diseases. (When my wife and I moved to Mono County, we found affixed to the door of our new home a flier that advised us that one of our neighbors had just died from the plague. Welcome to the neighborhood.)
For those of you who haven’t been following this story, several cases of hantavirus—a nasty, potentially lethal disease with no known cure—have been traced back to a bevy of newish tent cabins in Camp Curry, a popular campground within Yosemite National Park. Hantavirus is associated with rodents, and it is believed that the mice that represent the disease vectors here nested in the insulation found inside the cabins’ walls. As of writing, two people have died from the disease, a few others have become sick, and the Centers for Disease Control have announced that up to 10,000 park visitors may be at risk.
It’s difficult to assess the likely liability here, since we (or, at least, I) don’t know at least four important facts: (1) who, as between the park and its employees on the one hand and an independent contractor / concessionaire on the other, designed, built, and maintained the cabins; (2) what, if any, regulations and policy directives applied to the construction and maintenance of the cabins; (3) precisely what notice the park and /or contractor had regarding the threat of hantavirus in Camp Curry; and (4) what steps were taken to prevent infestation, post-construction. These facts bear upon the applicability of the Federal Tort Claims Act and its exception for discretionary functions, as well as the existence vel non of negligence.
It’s worth noting, however, that courts often interpret the discretionary-function exception quite broadly when they consider claims that allege that national-park employees mismanaged park resources, especially wildlife. Just last week, for example, a federal district court in Seattle dismissed a lawsuit arising out of a fatal mountain goat attack in Olympic National Park, on the ground that it generally lay within the sound discretion of park officials to decide how to manage the local mountain goat population. Earlier this year, the United States Court of Appeals for the Third Circuit affirmed a similar holding by a district court in a suit involving a barracuda attack in the Virgin Islands. Back in 2011, a Utah court reached a contrary decision in a case involving a fatal bear attack, but there, the bear already had attacked another park visitor, such that the plaintiffs could persuasively argue that it had to be destroyed, or other precautions taken.
I suspect that most judges feel out out of their element in second-guessing park officials’ decisions regarding human-wildlife interactions, unless stark facts exist that establish that park officials made a patently misguided decision. Garden-variety traffic accidents in the parks lie at the opposite extreme, for the most part, with judges being sufficiently familiar with these fact patterns that they accept a more searching, skeptical role. Somewhere in the middle lie signage cases, which certainly have their analogues in conventional civil practice, but which suffer from the sense that parks should remain relatively pristine, leaving more room for official discretion than would exist outside of a parks setting. This split raises some interesting questions regarding the appearance versus the reality of “expertise,” but those questions are probably best left for another time.
posted by Gerard Magliocca
I was talking to one of my colleagues recently about our school’s Product Liability course, and we both asked the same question–Is there any point in teaching that as a separate class anymore? Product liability law barely has a pulse these days. Why do I say that?
1. Federal statutes preempt state product liability law with increasing frequency (either because Congress drafts them that way or because the Supreme Court is inclined to read them that way).
2. There isn’t much that is distinctive about product liability law. In most cases, the inquiry into whether a product or a warning label is defective just reduces to the same old negligence inquiry (a cost/benefit assessment). We say that product liability is strict, but that rests on a conclusion that the product is defective or unreasonable.
3. Litigation to regulate particular goods through product liability (guns, fast food, etc.) have basically floundered.
I’m sure that many product liability lawyers and scholars disagree that their field is dead. As the Olympic fencing judge says, “En Garde!”
posted by Gerard Magliocca
In the aftermath of the murders in the Colorado movie theater, the inevitable lawsuits are getting underway. The exceptional nature of the act may make it hard to hold the theater negligent for lack of security (though people versed in Colorado tort law may feel otherwise), but the more interesting question is the potential liability of the university where the alleged killer was a student.
There is a claim that the suspect was seeing a school psychiatrist, and that she took some steps to alert university officials that this patient posed a danger to others. There is authority in at least one well-known case from California (Tarasoff) for the proposition that a university psychiatrist (and, by extension, the university) can be held liable for failing to warn the intended victim of a crime when the doctor has ample reason to think that her patient might kill that person.
There are two lines of inquiry that seem relevant here. One is whether the doctor’s duty lapsed when the alleged killer dropped out of school (if he actually did). The second crucial question is what exactly alarmed the doctor about the patient. If it was a general threat, then her failure to warn the police may not matter. If it was more specific (say, involving, a fantasy about killing people at a movie theater), then that might pose a liability problem. But again, I’m not familiar with the Colorado cases on this issue.
posted by Lawrence Cunningham
A court last week ordered New York’s current A.G., Eric Schneiderman, to find and disclose email files Spitzer created using a private account while working as a state employee. Such files, if they exist, are covered by the state’s freedom of information law, the court held.
The files are sought by a defendant, Howard Smith of AIG, in a civil prosecution Spitzer launched 7 years ago while A.G. The emails, which Spitzer says do not exist, are rumored to contain characteristic loose talk that could prove embarrassing to Spitzer and compromise cases he brought. As I am researching and writing about AIG, my work would benefit greatly from seeing any such emails.
Spitzer is not likely to cooperate. He blasted Schneiderman this week over his handling of the matter. He also took pot shots at Smith, as well as Hank Greenberg, former head of AIG, that appear libelous, in much the way Spitzer last year drew a defamation lawsuit for comments about other people he targeted as A.G.
posted by Gerard Magliocca
About a year-and-a-half ago, I wrote a post about how assumption-of-risk principles might apply to the claim that ex-NFL players were suffering from dementia and other chronic brain problems due to repeated blows to the head. I didn’t realize at the time that we would see a lawsuit against the league along these lines so soon. While extensive discovery is still ahead, there is a decent chance that the NFL will be found liable for not doing more to protect players.
One issue in the case is “What did the NFL know and when did they know it?” If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain. It is more likely, though, that this is not true. What then? Product liability suits with a long latency period (the time between exposure and symptoms) pose very tricky problems. One way of viewing the issue is that it is unfair to hold a firm liable when the consensus was that the product was safe–how were they supposed to know better? Another thought is that a firm that puts a product into the stream of commerce and injures people should always pay because they profited and to do otherwise would force an innocent victim to bear the loss. Complicating that is the extent to which the consumer is aware of a risk, though not THE risk, of the product. Obviously football players knew that they could get seriously hurt. But does it matter that they did not know that they could get hurt in the way that, say, Dave Duerson was?
This is actually not a bad topic for a symposium, but in the meantime what do you think? (The prospective question of how you can make football safer is a separate issue.)
posted by Stanford Law Review
Volume 64 • Issue 3 • March 2012
From Multiculturalism to Technique:
April 20, 2012 at 1:36 pm Posted in: Constitutional Law, Corporate Finance, Courts, Criminal Law, Criminal Procedure, Culture, Current Events, Financial Institutions, Law Rev (Stanford), Law Rev Contents, Tort Law Print This Post No Comments
posted by UCLA Law Review
Volume 59, Discourse
|Putting Down: Expressive Subordination and Equal Protection||Jeffrey S. Helmreich||112|
|Tinkering With the Machinery of Life||Ben Trachtenberg||128|
|Lies, Honor, and the Government’s Good Name: Seditious Libel and the Stolen Valor Act||Christina E. Wells||136|
posted by Marco Simons
(Marco Simons is Legal Director of EarthRights International. He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)
Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.
On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
Read the rest of this post »