No Harm, No Foul — But How Do You Know If There Was Harm?

Yesterday, the U.S. Supreme Court agreed to hear a case that gives the Court an opportunity to clarify a longstanding ambiguity in harmless error law.  Even if a defendant’s procedural rights have been violated at trial, a conviction will not be reversed on appeal if the error was harmless.  However, the Court has at different times articulated the harmless error standard in two different ways, without ever clearly indicating whether the two formulations are substantively different and, if so, which one is preferred.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

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Federal Jurisdiction Over Claims of Corporate Liability Under International Law

[Editor’s Note: This month, faculty members have been posting on upcoming judicial decisions of particular interest. This is the third post in the series.]

The Alien Tort Statute (“ATS”) creates federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”

Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity.

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A.B.A. Rejections of Obama Judicial Nominees

Speaking through its judicial vetting committee, the A.B.A. has rejected fourteen of President Obama’s potential nominees for the federal bench. The overall rejection rate was 7.5 percent, a rate three and a half times that for the eight-year administrations of both President George W. Bush and President Bill Clinton.

Why has the A.B.A. been less enthusiastic about the Obama judicial nominees? One simple theory is that the organization is more conservative than many think. It used to be assumed the A.B.A. had a liberal bias, but the rejected nominees are Obama-style liberals.

Another theory involves the experiences and career paths of the nominees. Most were government lawyers and academics, but the A.B.A. apparently wants significant trial experience. The A.B.A., like the general public, may think that “true” lawyers are litigators.

The most troubling theory for the high rejection rate is that the A.B.A. continues to imagine a white, male federal judiciary. Eight of the fourteen rejections are African American or Hispanic, and nine are women.

President Obama could still seek Senate confirmation for his nominees, but regardless of what he decides on that score, the rejections provide new perspectives on the A.B.A. The emerging image is hardly attractive.

 

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