Some Thoughts on Kiobel

A few weeks ago I wrote a post providing a brief background on Kiobel v. Royal Dutch Petroleum Co., the case in which the Supreme Court will likely decide whether the Alien Tort Statute confers federal jurisdiction over claims alleging corporate violations of customary international law. I’d like to offer a couple of additional thoughts on that upcoming decision.

Although not directly at issue in the litigation, Kiobel seems to raise an interesting question about the method by which courts go about ascertaining custom. A core principle of international law is that binding customary norms develop from “general and consistent practice that states follow from a sense of legal obligation.” According to Sosa v. Alvarez-Machain, the ATS provides for federal jurisdiction over civil actions by aliens who have alleged violations of a particular subset of these norms–i.e., those that are “accepted by the civilized world” and defined with a fairly high degree of specificity. Thus, determining whether the ATS provides jurisdiction in any given case often requires a judicial analysis of the nature, extent, and rationale of the practice that has allegedly given rise to the norm that the defendant has allegedly violated. In some cases–such as those involving piracy, offenses against ambassadors, and torture–the jurisdictional analysis is relatively easy because the underlying norm is widely accepted and well-defined. In others, it may be difficult to ascertain whether a given norm has the requisite levels of state acceptance and definitional precision.

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Why the Permit Policies in the U.S. Capitol Are Irrelevant

Confusion continues over the new Department of Administration rules announced December 1 which require advance permits for many demonstrations held within the Wisconsin State Capitol. Among the more controversial aspects of the policy are its applicability to small groups of protestors and the discretion granted to the State Capitol police to require permit seekers to pay security costs in advance. I have already written about the manner in which this policy goes too far, and how it impermissibly infringes upon the First Amendment rights of protestors.

One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.

At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban?  The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is.

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Learned Hand on the Politics of Judicial Appointments

In debates over potential reforms to the judicial appointments process, there seems to be a pervasive sense that the problem of politicization is a relatively new one. In terms of the frequency with which the Senate rejects even highly qualified nominees and the extent to which overt partisanship has crept into the evaluation of candidates for lower courts, that sense seems pretty accurate. More than either of his two most recent predecessors, President Obama has had a difficult time securing Senate approval of his picks for the judiciary, as I previously discussed here.

I think it’s helpful to appreciate, however, that the basic problem of partisanship trumping merit as a determinant of judicial appointments is anything but new. Recently, I was reading Gerald Gunther’s biography of Learned Hand and came across a reminder of how the appointments process has long been an overwhelmingly political affair, even for lower-court judgeships. Gunther explains that when Jerome Frank’s death in the late 1950s left vacant a seat on the Second Circuit, advocates from opposing political orientations lobbied heavily for their favored candidates to receive the next appointment. Many Republicans pushed for the selection of Leonard Moore, the U.S. Attorney for E.D.N.Y., while Democrats favored Irving Kaufman, the federal judge who had presided over the espionage trial of Julius and Ethel Rosenberg. Moreover, many on both sides appear to have viewed the choice between Moore and Kaufman as essentially political rather than merit-based. One of the significant arguments made in favor of Kaufman, for example, was that elevating him to the Second Circuit could function as a way for the President and Senate to signal their approval of his handling of the Rosenberg trial, of which leftist organizations had been fiercely critical.

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