West Law Report

Human Rights Plaintiffs May Plead Aiding and Abetting Theory of Liability

Posted in Alien Tort Claims Act, apartheid, Harvard Law Review (case) by mrkooenglish on May 24, 2008

A case summary of Harvard Law Review (May 2008): Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (.pdf) (8 pages):

FEDERAL STATUTES — ALIEN TORT STATUTE – Second Circuit

Some of the most interesting and unsettled questions in human rights litigation after Sosa v. Alvarez-Machain concern the status of secondary liability theories, prominently including aiding and abetting. Although several courts have held that aiding and abetting liability is available in Alien Tort Statute (ATS) cases, there is continuing debate over whether it should be available at all, how it should be defined, and what sources of law courts should consult for answers to these questions. Recently, in Khulumani v. Barclay National Bank Ltd. (2007), a Second Circuit panel held that ATS plaintiffs “may plead a theory of aiding and abetting liability,”5 but split on whether courts should look to customary international law or federal common law to determine the availability and scope of this liability theory. Although the three separate opinions in Khulumani indicate the difficulty of the issue, the best reading of the key U.S. cases and of customary international law is that courts should look primarily to federal common law to decide questions about aiding and abetting liability in ATS cases.

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Sosa v. Alvarez Machain

Harvard Law Review leading case summary: Sosa v. Alvarez Machain (2004): (.pdf) (11 pages)

Controversy has surrounded the Alien Tort Statute (ATS) since the Second Circuit pulled it from centuries of obscurity in the landmark case of Filartiga v. Pena-Irala. The current debate within the judiciary and the acad-emy arises largely from the confluence of two great legal shifts during the twentieth century: the changed relationship between the federal courts and the common law since Erie Railroad Co. v. Tompkins, and the evolution of customary international law, particularly its increased attention to the rights and duties of individuals rather than of states.

Last Term, in Sosa v. Alvarez-Machain (2004), the Supreme Court entered the debate and held that the prohibition in customary international law against arbitrary detention was not defined specifically enough to allow a claim under the ATS. While the Court did decide that claims under recently developed norms of international law may indeed be ac-tionable under the ATS, Sosa failed to articulate a clear conception of the interaction between customary international law and domestic law, and offers little guidance to lower courts both within ATS doctrine and beyond.

Sixth Circuit Denies Standing To Challenge Terrorist Surveillance Program

Harvard Law Review case summary (Issue 121, Jan 2008): ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (.pdf) (8 pages)

The Terrorist Surveillance Program (TSP) offers a conundrum for the courts and would-be challengers. Many experts have argued that the program was illegal on the grounds that it ignored the warrant requirement congress prescribed in the Foreign Intelligence Surveillance Act of 19781 (FISA) and that it might have violated the Fourth Amendment. But the state secrets doctrine has prevented potential plaintiffs from obtaining proof that they were among the group surveilled under the TSP.3 In a recent decision, ACLU v. NSA, the Sixth Circuit accordingly held that a group of plaintiffs lacked standing to challenge the TSP because they could not show that they personally were injured by it. The judges relied on a strict construction of standing for Fourth Amendment injuries, one developed in cases where plaintiffs sought to challenge individual searches of other people. In the context of secret surveillance programs by the government, the reality is that no plaintiff will be in a position to establish injury with anything approaching certainty. Hence, a more appropriate approach would be to allow standing where plaintiffs can show even a low level of probability they have been or will be among the injured.

D.C. Circuit Declines To Overturn Lower Court’s Finding of Justiciability in Tort Suit Brought by Indonesian Villagers

Havard Law Review case summary (Issue 121, Jan 2008): Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007) (.pdf) (8 pages)

FEDERAL COURTS — POLITICAL QUESTION DOCTRINE

In 2001, Exxon Mobil Corporation (Exxon) operated a natural gas extraction and processing facility in the Aceh province of Indonesia. Eleven Acehnese villagers sued Exxon in the U.S. District Court for the District of Columbia, alleging that Exxon’s security forces — composed of members of the Indonesian military — committed murder, torture, sexual assault, and other tortious acts against them. The plaintiffs brought claims under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), in addition to common law tort claims. Exxon filed a motion to dismiss the complaint on the ground that the claims were nonjusticiable political questions.

Ineffective Assistance of Counsel for Capital defendant

A leading case summery of Harvard Law Review: Schriro v. Landrigan (2007) (11 pages)

Sixth Amendment — Ineffective Assistance of Counsel

Capital defendants are not always cooperative or repentant, even at sentencing hearings determinative of their fates. Some death penalty defendants may refuse to aid in investigation of mitigating evidence, or they may actively obstruct presentation of it during the sentencing phase. Others may flaunt the purposeful nature of their killings, their lack of remorse, or their willingness to be put to death for their crimes. Courts must be aware, however, that this behavior may be due to mental illness or caused by physical and emotional abuse, a genetic disorder, or drug addiction — characteristics that may reduce a defendant’s moral culpability.

Last Term, in Schriro v. Landrigan, the Supreme Court upheld a state court’s finding that a defendant who refused to allow the presentation of mitigating evidence from his family members was not prejudiced by his counsel’s failure to investigate fully or to present other sorts of mitigating evidence. Thus, the Court held, the defendant was not entitled to an evidentiary hearing on the claim of ineffective assistance of counsel. The Court failed to analyze the context of Landrigan’s refusal, including unique concerns about particular mitigating evidence and the defendant’s background — factors that may have explained his statements and behavior. Moreover, the Court did not consider the defendant’s refusal in the context of its waiver precedents or the importance of mitigating evidence. Courts should not expand a limited refusal to present only some mitigating evidence into a complete refusal to present any mitigating evidence, nor should they allow recalcitrant behavior at sentencing to justify eradication of a defendant’s constitutional right to effective assistance of counsel.

Presumption of Reasonableness of Sentencing

A leading case summery of Harvard Law Review: Rita v. United States (2007) (11 pages)

Sixth Amendment — Federal Sentencing Guidelines — Presumption of Reasonableness

In United States v. Booker, the Supreme Court found that the Federal Sentencing Guidelines violated the Sixth Amendment. It held the Guidelines unconstitutional because they required judges to increase sentences above the level authorized by facts conceded by the defendant or found by a jury beyond a reasonable doubt. Its remedy — making the Guidelines advisory rather than mandatory and changing the standard of review on appeal to reasonableness — created a host of contested legal questions, including whether appellate courts could apply a presumption of reasonableness in reviewing sentences falling within the applicable Guidelines range.

Last Term, in Rita v. United States, the Supreme Court held that an appellate court could apply such a presumption. But by also articulating a weak standard for the requirement that a sentencing judge provide a statement of reasons for the penalty she imposes, the Court
undermined the rationale justifying the presumption. In so doing, i implicitly sanctioned lower court treatment of the Guidelines as de facto mandatory after Booker. To justify an appellate presumption founded on the exercise of independent trial-level judgment and to make real the constitutional promise of Booker, trial judges should be required to express in writing their precise reasons for choosing a particular sentence and rejecting any departures sought by the defendant. In January 2003, Victor Rita purchased a machine gun parts kit from InterOrdnance of America, Inc., the target of a Bureau of Alcohol, Tobacco, Firearms, and Explosives investigation. That October, Rita provided testimony before a grand jury that was contradicted by separate evidence. The government indicted Rita in the United States District Court for the District of North Carolina on various charges, including making false statements under oath to a federal grand jury. The jury convicted Rita on all counts.

Death Qualification Decisions

A leading case summery of Harvard Law Review (Issue 121, Nov 2007): Uttecht v. Brown (2007) (11 pages)

Sixth Amendment — Death Qualification Decisions

Endless review of death sentences is exhausting the courts. The legislative response to this problem can be seen in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which sharply limits federal habeas review of state court decisions. The judicial response is apparent in the Supreme Court’s increasing reluctance to reverse sentences for minor errors many years after their imposition.

The Justices’ frustration with the delaying tactics of capital defendants was on display last Term in Uttecht v. Brown, in which the Court reinstated a thirteen-year-old death sentence overturned by the Ninth Circuit. The Court held that the trial judge had not abused his discretion by striking a potential juror who expressed some hesitancy to impose a death sentence under the circumstances of the case and whose removal was not objected to by defense counsel. Brown should remind appellate judges of the high degree of deference afforded to trial court determinations, particularly under circumstances that suggest the trial judge may have been relying on his observation of an individual’s demeanor. But as Congress and the Court move to curb excessive review of death sentences, it is important that lower courts not mistake more lenient standards of review on appeal for less rigorous first-order standards. Brown did not alter the standard that trial judges must apply in deciding whether to exclude a juror for cause, which remains strongly tilted toward retention of all but the most biased veniremen.

Allocation of Factfinding in Sentencing

A leading case summery of Harvard Law Review: Cunningham v. California (2007) (11 page)

Sixth Amendment — Allocation of Factfinding in Sentencing

Apprendi v. New Jersey spawned a series of Supreme Court sentencing decisions which, when viewed together, are at best confusing and at worst contradictory. Commentators and courts have struggled to find a coherent governing principle uniting Apprendi, Blakely v. Washington, and United States v. Booker. The holding in Apprendi, originally described as a “bright-line rule,” has proved anything but. Last Term, in Cunningham v. California, the Court added another chapter to the Apprendi saga when it declared unconstitutional California’s Determinate Sentencing Law (DSL). Justice Ginsburg authored the majority opinion that overturned the California Supreme Court’s determination that the DSL did not differ in any constitutionally relevant way from the Federal Sentencing Guidelines, as revised by Booker.

Although at first blush Cunningham seems to be an ode to meaningless formalism, reading between the lines of its opinions exposes a substantive debate about what the Sixth Amendment means and why it matters. The Court’s decision implicitly protects the role of the jury, so that the voices of individual citizens may serve as a check against the legislature when it diverges from the will of the people.

Reasonableness of Forcible Seizure and Fourth Amendment

A leading case summery of Harvard Law Review: Scott v. Harris (2007) (12 pages)

Fourth Amendment – Reasonableness of Forcible Seizure

The Supreme Court has long struggled to determine the circumstances under which public officers should be protected from civil liability. In 2001, Saucier v. Katz established a two-pronged test for resolving such qualified immunity claims. In the first step, a court asks if,
“[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right.” Only if the plaintiff establishes a constitutional violation does a court then look to whether the officer is entitled to qualified immunity, determining “whether, at the time of the incident, every objectively reasonable [officer] would have realized the acts violated already clearly established federal law.”

Last Term, in Scott v. Harris, the Supreme Court held that an officer’s use of deadly force to terminate a car chase was not a violation of the suspect’s Fourth Amendment rights and thus did not satisfy the first prong of the Saucier test. The Court’s opinion rested on an unsatisfying constitutional holding, the result of its adherence to the problematic Saucier decision. A better approach would have been for the Court to decline to apply the Saucier standard in the prescribed sequence and instead to decide the case on qualified immunity grounds alone.

Execution of the Presently Incompetent

A leading case summery of Harvard Law Review (Issue 121, Nov 2007): Panetti v. Quarterman (2007) (11 pages)

Eighth Amendment — Death Penalty — Execution of the Presently Incompetent

The Supreme Court’s capital punishment jurisprudence might be characterized as a struggle for coherence. Since its fractured ruling in Furman v. Georgia, however, the Court has achieved relative clarity at least on the proposition that capital punishment is intended to promote retribution and deterrence. In Ford v. Wainwright, the Court found that neither of these purposes is served by the execution of a prisoner who has become incapable of comprehending
the connection between his crime and his impending execution and that such executions are barred by the Eighth Amendment.

Last Term, in Panetti v. Quarterman, the Court held that the same logic applies to prisoners who can articulate this connection, but are so delusional that they are incapable of “rational[ly] understanding” it. This conclusion is not surprising, but in reiterating the arguments made in Ford, the Panetti Court revealed a troubling incoherence: the treatment of retribution and deterrence in Ford and Panetti is inconsistent with the Court’s prior treatment of these theories of punishment. Indeed, under a consistent interpretation of the Court’s accepted rationales for capital punishment, there may be no coherent way to distinguish between the execution of one who is competent and the execution of one who has lost his sanity. As such, Panetti highlights the possibility that the logical conclusion of our death penalty system is a result that, in the Court’s own words, “offends humanity.”

Mitigating Evidence and Death Penalty

A leading case summary of Harvard Law Review: Abdul-Kabir v. Quarterman (2007) and Brewer v. Quarterman (2007) (11 pages) The two cases were consolidated.

Eighth Amendment – Death Penalty – Consideration of Mitigating Evidence

The maxim that “death is different” has long guided the Supreme Court’s death penalty jurisprudence. In the landmark case of Lockett v. Ohio, a plurality of the Court declared that the Eighth Amendment mandates that a capital sentencing body be permitted to “consider[], as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” In Penry v. Lynaugh, the Court applied the Lockett principle to a death sentence under a Texas statute mandating death if the sentencing body found that the defendant had acted deliberately and was likely to be dangerous in the future. Under that statutory regime, the jury could not necessarily consider and give effect to the mitigating force of the defendant’s mental retardation and history of childhood abuse.

Last Term, in Abdul-Kabir v. Quarterman and Brewer v. Quarterman, the Supreme Court addressed the constitutionality of two defendants’ death sentences under that same statute. The Court held that the Texas Court of Criminal Appeals (CCA) had misapplied clearly established law by refusing to invalidate the sentences when the sentencers were not permitted to give meaningful effect to the defendants’mitigating evidence: childhood neglect and impulse-control disorder in Abdul-Kabir,9and mental illness, childhood abuse, and substance abuse in Brewer. The Court therefore concluded that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas relief was warranted.

At first sight, the decisions in Abdul-Kabir and Brewer seemed to signal a departure from precedents granting wide deference to state court decisions where the relevant clearly established law was broad and general. In fact, however, the law that the Court invoked in these cases was much narrower than the opinions superficially suggest. Therefore, the Court’s selection of a fact-specific, highly determinative holding as the relevant clearly established law explains how the strictness of the Court’s review of the CCA’s decisions is reconcilable with precedent.

Punitive Damages: Philip Morris USA v. Williams (2007)

A leading case summery of Harvar Law Review (Issue 121, Nov 2007): Philip Morris USA v. Williams (2007) (11 pages)

Punitive Damages

The history of the Fourteenth Amendment is one of hierarchy and capitalism. In the Amendment’s first 139 years, courts have consistently used it to perpetuate dominant notions of class and culture — to maintain deeply rooted inequality and resist meaningful changes in the areas of poverty, race, and gender. While the Amendment’s beautiful language and spirit could have been used to ensure equality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite. Last Term, in Philip Morris USA v. Williams,1 the Supreme Court used the Fourteenth Amendment to reaffirm and enrich procedural and substantive due process protections for corporations sued for
punitive damages. This is the sad reality of a legal system and a culture that have often lacked the courage necessary to promote the practice of daily human life in a manner consistent with our values. But by reconceptualizing the kinds of harms that it addresses, we can transform the Amendment — now itself part of the machinery of cruel myth and illusion — into a tool for equality and justice.