Antitrust Jurisdiction under Customary International Law

1984 ◽  
Vol 78 (4) ◽  
pp. 783-810 ◽  
Author(s):  
Karl M. Meessen
Keyword(s):  
United States ◽  
International Law ◽  
Case Analysis ◽  
Federal Courts ◽  
District Court ◽  
Customary International Law ◽  
Court Of Appeals ◽  
Northern District ◽  
Legal Writing ◽  
The U.S

When, on October 24, 1983, the U.S. District Court for the Northern District of California handed down its decision in Timberlane Lumber Co. v. Bank of America and denied U.S. jurisdiction out of regard for the Honduran “system of justice,” there may have been some surprise that the case was still pending. The Timberlane decision of 1976 of the Court of Appeals for the Ninth Circuit, which remanded the matter to the district court, had already become a classic, even though it was preceded by the 1968 decision in United States v. First National City Bank on the production of documents located abroad. The Timberlane approach outlined by Judge Choy, under which the exercise of antitrust jurisdiction has to be restrained by a case-by-case analysis of various factors, was widely discussed (and usually praised) in legal writing, and was also followed by federal courts of the Second, Third, Fifth, Ninth and Tenth Circuits.

United States v. Dire

2013 ◽  
Vol 107 (3) ◽  
pp. 644-649 ◽  
Author(s):  
Eugene Kontorovich
Keyword(s):  
United States ◽  
International Law ◽  
International Crime ◽  
Customary International Law ◽  
Court Of Appeals ◽  
Law Of Nations ◽  
The World ◽  
Treaty Law ◽  
The Law ◽  
The U.S

In the first criminal piracy decision by a United States court in nearly a century, the U.S. Court of Appeals for the Fourth Circuit ruled that the federal piracy statute’s reference to the “law of nations” explicitly ties the scope of the offense to evolving customary international law definitions of the crime. The court went on to find that under current customary and treaty law, attempted piracy falls within the scope of the international crime. In doing so, it joined several courts in nations around the world that have confronted the issue as a result of the outbreak of Somali piracy that began in 2008.

Fraud & Abuse: Fourth Circuit Holds Eleventh Amendment Bars Qui Tam Suit Against State in Federal Court

1999 ◽  
Vol 27 (2) ◽  
pp. 201-202
Author(s):  
Allan Gomes
Keyword(s):  
United States ◽  
Federal Court ◽  
District Court ◽  
False Claims Act ◽  
Court Of Appeals ◽  
Federal Intervention ◽  
Private Citizen ◽  
Northern District ◽  
Eleventh Amendment ◽  
The U.S

The U.S. Court of Appeals for the Fifth Circuit ruled, in United States u. Texus Tech University, 171 F.3d 279 (5th Cir. 1999), that the Eleventh Amendment bars a private citizen from bringing a qui tam action in federal court against a state, absent federal intervention.Intervenor Carol Foulds was a dermatology resident at the Texas Tech Health Services Center. While a resident, Foulds examined patients, made diagnoses, and prescribed treatments for patients. Foulds alleged that she and other residents performed these medical services without the supervision of staff physicians. Foulds further alleged that, after residents performed these services without physician oversight, staff physicians signed charts and Medicare and Medicaid billing forms certifying that they personally performed or supervised the administration of these services. Foulds estimates approximately 500,000 false claims occurred in a span of ten years.In 1995, Foulds filed a qui tam action with the U.S. District Court for the Northern District of Texas. As regulated by the False Claims Act (FCA), 31 U.S.C. § 3729(b)(2) (West 1998), the complaint remained under seal.

United States v. Stuart

1989 ◽  
Vol 83 (4) ◽  
pp. 918-923
Author(s):  
Daniel M. Price
Keyword(s):  
United States ◽  
The United States ◽  
Good Faith ◽  
District Court ◽  
Criminal Prosecution ◽  
Justice Department ◽  
Court Of Appeals ◽  
Canadian Law ◽  
History Of ◽  
The U.S

In response to a request by Canadian tax authorities under the United States-Canada Double Taxation Convention (Convention), the U.S. Internal Revenue Service (IRS) issued summonses to obtain U.S. bank records concerning certain accounts of respondents, Canadian citizens whose Canadian tax liability was under investigation. Respondents sought to quash the summonses, arguing that because under 26 U.S.C. §7609(b) the IRS is prohibited by U.S. law from using its summons authority to obtain information about a U.S. taxpayer once a case is referred to the Justice Department for prosecution, and because the tax investigation of respondents was part of a Canadian criminal investigation, the IRS should be precluded from using its summons authority to honor the Canadian request under the Convention. Unsuccessful in the district court, respondents prevailed in the U.S. Court of Appeals for the Ninth Circuit, which held that under the “good faith” standard applicable to enforcement of domestic summonses, the IRS may issue a summons pursuant to a Convention request only if it first determines and makes an affirmative statement to the effect that the Canadian investigation has not reached a stage analogous to a Justice Department referral by the IRS. The U.S. Supreme Court (per Brennan, J.) reversed, and held: (1) that if the summons is issued in good faith, it is enforceable regardless of whether the Canadian request is directed toward criminal prosecution under Canadian law; and (2) neither United States law nor anything in the text or the ratification history of the Convention supports the imposition of additional requirements. Justice Kennedy (joined by O’Connor, J.), concurring in part and in the judgment, filed a brief opinion to state his view that it is unnecessary to decide whether Senate preratification materials are authoritative sources for treaty interpretation. Justice Scalia, concurring in the judgment, wrote separately to oppose the use of such materials in treaty construction.

Customary International Law and U.S. Judicial Power

2020 ◽  
pp. 251-264
Author(s):  
Thomas H. Lee
Keyword(s):  
United States ◽  
Human Rights ◽  
Foreign Policy ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Federal Courts ◽  
Judicial Power ◽  
Customary International Law ◽  
The Third

This chapter describes specific points of divergence between the Third and Fourth Restatements of the Foreign Relations Law of the United States regarding how U.S. courts should engage with customary international law. The Third Restatement, adopted in 1987, envisioned U.S. courts fluent in and engaged with international law, deploying a U.S. foreign relations jurisprudence in dialogue with international law and lawyers. Customary international law was a central feature of this vision because it was the prime pathway for human rights litigation in federal courts when U.S. treaty-based human-rights initiatives had stalled. Appearing thirty years later, the Fourth Restatement exhibits a fundamentally different orientation toward customary international law. Customary international law is no longer embraced as it was in the Third Restatement as an opportunity to play offense, to advance the international law of human rights. That vision inspired a reaction among some U.S. legal scholars who questioned the U.S. federal law status of customary international law and the legitimacy of U.S. judges advancing the customary international law of human rights. The Fourth Restatement seeks a middle ground by defending against this revision of customary international law’s status role in the United States, concerned that the revisionist view might encourage and provide cover for U.S. courts to dismiss cases and claims with foreign policy ramifications that they should be adjudicating. The approaches of the two Restatements, taken together, have contributed to the disengagement of U.S. judges from customary international law altogether, to the detriment of U.S. conduct of foreign policy and contrary to the original constitutional specification of the judicial power of the United States as reflected in Article III, the Judiciary Act of 1789 that established the federal courts, and early historical practice.

scholarly journals Corporations and Transnational Litigation: Comparing Kiobel with the Jurisprudence of English Courts

AJIL Unbound ◽  
2013 ◽  
Vol 107 ◽  
pp. 23-30
Author(s):  
Andrew Sanger
Keyword(s):  
United States ◽  
International Law ◽  
Common Law ◽  
The United States ◽  
Federal Courts ◽  
The U.S ◽  
Alien Tort Statute

As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., claims brought under the Alien Tort Statute (ATS) must “touch and concern the territory of the United States … with sufficient force” for federal courts to recognize a federal common law cause of action for violations of international law.

Committee of United States Citizens Living in Nicaragua v. Reagan

1989 ◽  
Vol 83 (2) ◽  
pp. 380-384 ◽  
Author(s):  
Martin Wald
Keyword(s):  
International Law ◽  
Executive Branch ◽  
Government Support ◽  
District Court ◽  
Fifth Amendment ◽  
Customary International Law ◽  
Military Aid ◽  
Court Of Appeals ◽  
Right Of Action ◽  
Jus Cogens

Appellants sued President Reagan and other executive branch officials in the U.S. district court to enjoin U.S. military aid to the Nicaraguán resistance forces (contras), alleging that the aid violated the Fifth Amendment to the Constitution, the United Nations Charter and customary international law. The district court, in an unpublished opinion, dismissed the complaint as presenting nonjusticiable political questions. The Court of Appeals for the District of Columbia Circuit (per Mikva, J.), affirming the dismissal on different grounds, held that (1) the trial court’s blanket invocation of the political question doctrine was inappropriate; (2) the statute funding the contras prevails over any earlier obligations under treaties or customary international law; (3) individuals have no private right of action to enforce decisions of the International Court of Justice; (4) adherence to an ICJ judgment rendered under a disputed assertion of compulsory jurisdiction is not required as a matter of jus cogens; and (5) plaintiffs had failed to show that U.S. government support of the contras caused their injuries or was so arbitrary and unreasonable as to violate their Fifth Amendment rights.

Court Allows ERISA Plan Participants to Sue Administrator for Physicians' Actions

1995 ◽  
Vol 23 (4) ◽  
pp. 408-408
Author(s):  
B.G.
Keyword(s):  
Federal Court ◽  
District Court ◽  
State Court ◽  
Insurance Plan ◽  
Court Of Appeals ◽  
Malpractice Suit ◽  
Northern District ◽  
Recent Developments ◽  
Health Laws ◽  
The U.S

On December 7, 1994, the U.S. District Court of the Northern District of Illinois ruled that ERISA preempts a participant in an ERISA plan from suing the plan's administrator under a state common law theory of respondeat superior (Rice v. Panchal, 875 F. Supp. 471 (N.D. Ill. 1994)) (see, “Recent Developments in Health Laws,” Journal of Law, Medicine & Ethics, 23 (1995): at 208). On September 12, 1995, the Seventh Circuit of the U.S. Court of Appeals reversed this decision and ordered that the case be tried in state court (Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995)). The court held that the case had been improperly removed to federal court. The court of appeals stated that the federal court did not have jurisdiction because the plaintiff's claim did not fall within ERISA's provisions.In this case, plaintiff David Rice brought a medical malpractice suit against two doctors who provided treatment to him in accordance with his ERISA insurance plan.

Desir v. Ilchert

1988 ◽  
Vol 82 (4) ◽  
pp. 830-832
Author(s):  
Susan Burke
Keyword(s):  
United States ◽  
Social Group ◽  
The United States ◽  
District Court ◽  
Habeas Corpus ◽  
Government Officials ◽  
Political Opinion ◽  
Court Of Appeals ◽  
Northern District

Plaintiff, a Haitian seeking asylum in the United States, filed a petition for habeas corpus in the United States District Court for the Northern District of California, to overturn a denial of asylum by both an immigration judge and the Board of Immigration Appeals (BIA). The plaintiff sought asylum under section 101(a)(42)(A) of the Immigration and Nationality Act (8 U.S.C. §1101(a)(42)(A) (1982)) (INA) on the basis of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The district court upheld the BIA decision, which allowed deportation of the plaintiff because the incidents of persecution in Haiti were economically rather than politically motivated. The Court of Appeals for the Ninth Circuit (per Tang, J.) reversed, holding that the plaintiff had demonstrated persecution based on political opinion by showing a pattern of extortion by government officials, and remanded for a determination of whether the plaintiff would be persecuted upon his return to Haiti.

Book Reviews

2014 ◽  
Vol 52 (4) ◽  
pp. 1175-1177
Keyword(s):  
Coping Strategies ◽  
Federal Courts ◽  
Law School ◽  
District Court ◽  
Senior Lecturer ◽  
Court Of Appeals ◽  
Federal Judiciary ◽  
The University ◽  
The U.S

Joshua C. Teitelbaum of Georgetown University reviews “Reflections on Judging”, by Richard A. Posner. The Econlit abstract of this book begins: “Explores the challenges that the federal courts face today, with particular emphasis on rising complexity, drawing upon Richard Posner's personal experience as a judge. Discusses Posner's road to the U.S. Court of Appeals; the federal judiciary evolving; the challenge of complexity; formalism and realism in appellate decision making; the inadequate appellate record; coping strategies for appellate judges--judicial self-restraint; coping strategies for appellate judges--interpretation; making it simple, making it new--opinion writing and appellate advocacy; forays into the district court; and potential solutions. Posner is Circuit Judge with the U.S. Court of Appeals for the Seventh Circuit and Senior Lecturer at the University of Chicago Law School.”

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