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As we come to the end of a busy week at this year’s ASIL/ILA conference, I fought back the urge to enjoy the benefits of the Cherry Blossom Festival to attend a panel on the use of state laws and state courts for the litigation of transnational issues. To use the shorthand, this was a panel about the prospects in state courts of the so-called “F-cubed” cases, where a foreign plaintiff sues a foreign defendant for acts that occurred in a foreign country. While focused on the US legal context (as advertised), the panel offered food for thought for all with an interest in the invocation of international rules in domestic courts. As explained by the moderator, Professor Simona Grossi of Loyola Law School, Los Angeles, the panel’s focus was inspired by indications of a trend within US Supreme Court and federal court jurisprudence that is closing the door to the litigation of foreign tort cases in federal courts, prompting consideration of the role of state courts for this kind of international human rights litigation.
The first presenter, Professor Cassandra Burke Robertson of Case Western University Law School, opened with the notion of a private right of action for the enforcement of international human rights prohibitions that appears present in the American psyche. While recognizing that some state courts might serve as hospitable fora for these actions, Professor Burke Robertson also justified her expression of pessimism, drawing attention to recent Supreme Court opinions on personal jurisdiction and the skepticism found therein as to the role of the courts as agents of social change for the protection of global rights. She drew attention, in particular, to the need to consider the impact of the Supreme Court’s opinion in Daimler AG v. Bauman concerning the unsuccessful attempt by Argentinean plaintiffs to sue DaimlerChrysler AG for the alleged collaboration of its subsidiary with the Argentine security forces during that country’s “dirty war” in the 1970s. For Burke Robertson, the holding on whether DaimlerChrysler was essentially “at home” in the forum state limits the ability of plaintiffs to bring causes of action regarding acts abroad, whether in state or federal court, with the judgment also evidencing judicial concerns about the consequences of jurisdictional over-reach. This situation in turn led to consideration of whether courts in other jurisdictions would be more amenable to allowing global tort claims to go forward and whether the issue would then become one of judgment enforcement, for which Burke Robertson did not see state courts as offering a benefit vis-à-vis federal courts.
The second presenter, Zachary Clopton, Public Law Fellow at the University of Chicago Law School, began with a useful synopsis of the background to the panel’s focus, with recommended reading being the February 2013 symposium issue of the UC Irvine Law Review on “Human Rights Litigation in State Courts and Under State Law”. Clopton rightly emphasized the two components of “state law” and “state courts” noting that a claim could be made on the basis of “state law” in federal courts; a point which then led to a very interesting discussion of the prospects for state legislators or state executives to act, say through the prospect of a state-enacted Alien Tort Statute or other private enforcement statute. While touching on the federalism and separation of powers concerns that this approach might generate, and noting the criticisms made as to whether state court judges have the expertise in international law for such a route, Clopton also raised the interesting cautionary point about whether actions taken at the state level would draw greater attention of a negative nature that might offset any benefits.
The third presenter, Professor Beth Stephens of Rutgers University Law School, was the ideal counter-weight to the theme of pessimism given her experience in litigating international human rights cases in US courts. She emphasized the need to clarify whether we are talking about the litigation of international rules or the litigation of common law torts (with perhaps less pessimism for the latter), and also noted that the cases that can be brought in state courts will involve a variety of claims, a variety of actors, and a variety of connections to the state. As with Clopton, she also reminded the audience that some state law claims can be litigated in federal courts, and further noted that a number of federal statutes have not been affected by the Supreme Court’s Kiobel opinion. As to the potential advantages for state court litigation, mention was made of urban juries, the clear liability of corporations for torts under state law, and the absence of the procedural hurdles applicable to federal court proceedings that had been mentioned by Professor Burke Robertson. Stephens also mentioned the potential boost that could be provided by certain state laws, and addressed the lack of expertise critique by rightly noting that it used to be said that federal court judges were not familiar with international law. Stephens saw benefit in variety, with personal jurisdiction and issues of conflicts of law not a problem in all cases, and further noting that even the foreign relations concern is not a problem in all cases, drawing upon an example where the foreign state had waived immunity. On a concluding note, Stephens also mentioned the reference to the exercise of federal jurisdiction and “otherwise by the state and local governments” in the US reservations to the International Covenant on Civil and Political Rights.
Unfortunately, illness prevented a fourth speaker, Professor Anthony Colangelo, Southern Methodist University Dedman School of Law, from participating; however, his paper was presented in brief by the moderator, drawing attention to the possibility of state law having a greater extraterritorial reach than federal law and the related discussion of a “false conflicts” of law. The paper is available from SSRN.
In the question period that followed, an audience member drew attention to the work of the ILA Committee on International Civil Litigation and the Interests of the Public, which resulted in the adoption of the “Sofia Guidelines on Best Practices for International Civil Litigation for Human Rights Violations” in 2012 (and also indicates that interest in the topic goes beyond American shores).
Joanna Harrington is a professor of law at the University of Alberta and a contributing author to the forthcoming Routledge Handbook on Transnational Criminal Law.