Posted by: Patrick Allen Foster | April 24, 2013

List of Links

1. When a great tree falls, old arguments become current again. Thus, behold this post, pointing to a New Yorker piece by Jon Lee Anderson, which discusses Thatcher’s relationship with Chile’s appalling dictator Pinochet:

Pinochet’s soldiers rounded up thousands in the capital’s sports stadiums and, then and there, suspects were marched into the locker rooms and corridors and bleachers and tortured and shot dead. Hundreds died in such a fashion. One was the revered Chilean singer Víctor Jara, who was beaten, his hands and ribs broken, and then machine-gunned, his body dumped like trash on a back street of the capital—along with many others. The killing went on even after Pinochet and his military had a firm hold on power; it was just carried out with greater secrecy, in military barracks, in police buildings, and in the countryside. Critics and opponents of the new regime were murdered in other countries, too. In 1976, Pinochet’s intelligence agency planned and carried out a car bombing in Washington, D.C., that murdered Allende’s exiled former Ambassador to the United States, Orlando Letelier, as well as Ronni Moffitt, his American aide. Britain regarded Pinochet’s killing spree as unseemly, and sanctioned his regime by refusing to supply it with weapons—that is, until Margaret Thatcher became Prime Minister.

In 1980, the year after Thatcher took office, she lifted the arms embargo against Pinochet; he was soon buying armaments from the United Kingdom. In 1982, during Britain’s Falklands War against Argentina, Pinochet helped Thatcher’s government with intelligence on Argentina. Thereafter, the relationship became downright cozy, so much so that the Pinochets and his family began making an annual private pilgrimage to London. …

Also, check out this piece in the New Statesman: “The simple courage of decision: a leftist tribute to Thatcher.”

2. The Supreme Court released its decision in Kiobel v. Royal Dutch Petroleum, a case dealing with the Alien Tort Statute (ATS) and, essentially, when foreigners can bring suit in U.S. courts against other foreigners for human rights abuses committed outside the United States. Short answer: not often. The decision in for the defendant was technically 9-0, but the justices divided over the reasoning behind the ruling: (i) Chief Justice Roberts wrote the main opinion, joined by Justices Scalia, Alito, Thomas, and Kennedy; (ii) Justice Kennedy wrote a separate concurring opinion; (iii) Justice Alito wrote a concurring opinion, joined by Justice Thomas; and (iv) Justice Breyer wrote an opinion concurring in the judgment but refusing to join any part of the other opinions; Justices Ginsburg, Sotomayor, and Kagan joined Justice Breyer’s concurrence.

This post by Lyle Denniston at SCOTUSblog is not a bad place to start. An excerpt:

In finally deciding a case that has been unfolding before the Court for nearly two full years, and was heard twice, five Justices declared that the judge-made concept that U.S. laws are presumed to apply only to the U.S. and its territory means in general that the ATS cannot be the basis for a lawsuit in which all of the conduct challenged occurred in a foreign country where there is a functioning, legitimate government.

That doctrine, spelled out most fully in the Chief Justice’s opinion, blocked the particular lawsuit at issue in the case: filed by twelve Nigerians, now living in the U.S., who claimed human rights violations by three Dutch or British oil companies that had allegedly enlisted the government of Nigeria to use its military to violently suppress resistance to oil exploration in the Ogoni region of the Niger Delta, between 1992 and 1995.

The Second Circuit Court had thrown out the lawsuit, but on the narrower basis that the ATS did not allow such lawsuits to be filed against corporations. That was the issue the Supreme Court originally took on, but then the Justices changed the thrust of the case to decide whether the ATS had any application to actions that occurred beyond U.S. shores.

On Wednesday, the Court barred the case, but on the point that the ATS did not have “extraterritorial” application. This lawsuit, the Chief Justice wrote, involved only “conduct occurring in the territory of a foreign sovereign” — here, Nigeria.

The Court explicitly avoided deciding whether any ATS case, under any circumstances, could be brought against a corporation, foreign or domestic. If the decision did leave some narrow range of options for future ATS cases in a U.S. court, and such a case targeted a corporation, the issue of whether the law can be used against such targets would be revived.

The Roberts opinion justified the result on the basis of several arguments: to avoid conflicts with other nations, to avoid judicial interference with diplomacy, to protect U.S. citizens from similarly being haled into foreign courts, and to avoid trying to set up the United States as the “custos morum [moral custodian] of the whole world.” That Latin quotation was borrowed from Justice Joseph Story, who made it in a court opinion in 1822.

Anderson writes (bolded emphasis added): “it seems that today’s opinion in Kiobel overrules Filártiga v. Peña-Irala, which found jurisdiction under the Alien Torts Statute to sue a torturer in the U.S. for his tortures abroad. Breyer writes for the liberal wing to criticize that holding, quoting the passage in the sidebar. (As the Court and the concurrence agree, Congress has now separately provided jurisdiction for torture claims pursuant to the Convention Against Torture.)”

Over at the Volokh Conspiracy, Eugene Kontorovich looks at why so many legal academics seem to have been so off base in their predictions regarding this case (as in some other cases).

There is additional commentary on the Kiobel decision from Katie Redford, and a roundup by Kali Borkoski. Also, check out this somewhat overwrought post at Daily Kos: “A terrible, horrible, no good, very bad day for human rights and terror victims.” (H/T for that last to Natasha Chart.)

3. I certainly do not in any way want to minimize the horror of what happened in Boston last week, but it’s worthwhile to consider some events that happened in Iraq on the same day as the Boston Marathon bombing (emphasis added): “Insurgents in Iraq deployed a series of car bombs as part of highly co-ordinated attacks that cut across a wide swath of the country today, killing at least 55 on the deadliest day in nearly a month. The assault bore the hallmarks of a resurgent al-Qaeda in Iraq and appeared aimed at sowing fear days before the first elections since U.S. troops withdrew.”

4. So, lost in the news of a very bad week was a 577-page report from the Constitution Project concluding that “it is indisputable that the United States engaged in the practice of torture” and that “the nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture.”

5. Clarissa has a post on adjuncts and remedial education in the first years of college (emphasis added): “75% of all teaching faculty members across the US are adjuncts. This sad state of affairs has been discussed form every angle, except one. There would be no excuse to hire so many adjuncts if there didn’t exist such an overwhelming need to provide remedial learning. Students come from high school lacking the most basic skills needed to acquire a real university education. In this sense, the only difference between students from fancy Ivy League schools and students from non-fancy state schools is that the rich kids are a lot better at passing meaningless standardized tests. In everything else, they are all equally ignorant. So we have to dedicate the first 2 years (at least) to teaching them the basics of history, geography, foreign language, calculus, academic reading and writing. Lecturers, instructors and adjuncts are hired to serve as high school teachers to people who already have high school diplomas that mean less and less every day.”

6. Jonathan Rees (Colorado State University) on massive open online courses (MOOCs): “Real college classes have writing assignments and required reading.”

7. I’m surprised that this case has not been dismissed yet, and I hope that the copyright-holder’s claims fail, decisively, soon: Woody Allen’s movie Midnight in Paris quoted/paraphrased (with proper attribution) two short sentences by Faulkner: “The past is not dead! Actually, it’s not even past.” Faulkner’s heirs have sued Sony Pictures Classics and movie exhibitors for copyright infringement, “alleging that the companies did not seek copyright permission for the quotes.” This suit is absurd. As Anderson notes in a recent post, the defendants do have a motion to dismiss pending before the federal court in Mississippi that’s hearing the case. Here’s a bit of the motion to dismiss:

This case presents clear questions of law on completely undisputed facts. Midnight in Paris paraphrases a single line from a full-length novel, repurposed for comic effect, and expressly attributed to the late Mr. Faulkner. Plaintiff claims copyright infringement but its Opposition identifies no case—none—where such a small, fleeting and transformative use of a novel was held actionable under the Copyright Act. Plaintiff asks this Court to do what no court has ever done—rule, as a matter of law, that a movie’s attributed paraphrase of a single line of a novel is copyright infringement, that a literary reference now requires a license. This is not the law, and should not be the law.

Hard to argue with that. If Woody Allen’s use of the lines is not fair use, then the term “fair use” has been stripped of all reasonable meaning or effective power.

8. Micah Cohen at 538: “Which Governors Are Most Vulnerable in 2014?”

(Programming Note: I originally meant to publish this post last week, but travel and other events got in the way.)


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