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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How the NBA Should Have Handled the Recent Labor Dispute

Most fans of professional basketball were probably delighted to learn of the recent agreement between the NBA owners and their players which will make possible a 66-game regular season beginning on Christmas Day.

However, for fans of sports law (like myself), the resolution was disappointing.  Had the players’ antitrust suit gone to trial, followed by the inevitable sequence of appeals, we might finally have received conclusive answers to some of the most perplexing questions in the field of sports law.

For example, we might have learned if the “decertify/recertify the union for negotiation leverage” strategy is really a permissible alternative under U. S. labor law, and we might have found out what sorts of owner-imposed restraints could survive “rule of reason” scrutiny under the antitrust laws.  Alas, we will simply continue to argue about the proper answers to such questions until the next major disruption of the professional sports labor-management front raises a new possibility of judicial resolution.

If I had been running the NBA, I would have responded to the NBAPA’s decertification and subsequent antitrust lawsuit by declaring the lockout over and immediately opening the training camps to the now non-unionized players.  I would have then have imposed mandatory drug testing rules and an absolutely rigid, exception-free salary cap.

The cap would apply to all forms of player compensation including the costs of signing new players out of the amateur ranks.   I am confident that both a reasonable drug testing regime and a fixed ceiling on salaries would be upheld under the antitrust laws as reasonable restraints on trade necessary to maintain competitive balance.

I would not have reinstituted the player draft or any restrictions on the signing of free agents — those matters would be adequately dealt with by the salary cap and do little to assure competitive balance.

Of course, for this to work, the NBA owners would all have to be on the same page, which is unlikely. Moreover, such an approach would almost certainly have led to a reformation of the union which would likely then go on strike.  But at that point the sports law carousel would be turning again.

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