Monday, July 28, 2008

Keitner on Accomplice Liability in Alien Tort Statute Cases

Chimene Keitner has now posted to SSRN her article titled, "Conceptualizing Complicity in Alien Tort Cases," which will appear in Volume 60 of the Hastings Law Journal. Here is the abstract:
The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: How much international law? The U.S. Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for alleged complicity in international law violations by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby contributing to the development and enforcement of international law standards. This Article provides an analytic roadmap for courts confronting accomplice liability claims in ATS cases. Part I concludes that U.S. courts should look to international law on accomplice liability, rather than federal common law. Part II examines international law doctrine on accomplice liability and concludes that the Second Circuit in the South African apartheid cases misstated the applicable standard, which prohibits knowingly providing assistance that has a substantial effect on the commission of the wrongful act. Part III considers the implications of this doctrinal analysis for broader concerns about the indeterminacy of international law and notions of international comity. By applying well-established international law to defendants' conduct, U.S. courts can provide domestic remedies for international wrongs while avoiding criticisms of illegitimately applying U.S. substantive law outside U.S. territory.

Here is the link:

Friday, July 11, 2008

Mart on the Patriot Act, Post-Reauthorization

Susan Nevelow Mart has posted an article to SSRN titled, "The Chains of the Constitution and Legal Process in the Library: A Post-Patriot Reauthorization Act Assessment." Here is the abstract:

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are such a potent symbol of democratic openness, the effect of the Patriot Act on libraries has acted in the public mind as a microcosm of the broader problems with the implementation of the Patriot Act. The publics discomfort with the civil liberties implications of the Patriot Act has turned out to be justified, as every agency that has reviewed the implementation of the Patriot Act has concluded that the government has not been able to maintain an appropriate balance between the need to protect civil liberties and the need to prevent terrorist acts. The government's list of domestic terrorist acts that have been prevented or punished is not inspiring: the entire panoply of tools authorized by the Patriot Act has not done much more than stop some home-grown right wing fringe groups and eco-terrorists. In light of the evidence of abuse of civil liberties and the questionable constitutionality of many of the Patriot Act's provisions, this paper suggests that the time for vigorous advocacy has not passed and that further legislative changes need to be made.

Here's the link:

Thursday, July 10, 2008

Roht-Arriaza on Transnational Prosecutions in Guatemala

Naomi Roht-Arriaza has published an article chronicling efforts to prosecute leaders of the deposed Guatemalan regime for genocide and torture, among other things, with the help of Spanish legal process. The article is titled, "Making the State Do Justice: Transnational Prosecutions and International Support for Criminal Investigations in Post-Conflict Guatemala," 9 Chi. J. Int'l L. 79 (Summer 2008).

Naomi has also co-authored a chapter on Guatemala in a book called Victims Unsilenced, published in 2007 by the Due Process of Law Foundation. (It's in Spanish.) Here's the link: