October 2017

  • October 12, 2017
    Guest Post

    by Barry H. Berke, co-chair, Litigation Department, Kramer Levin Naftalis & Frankel LLP; Noah Bookbinder, executive director, Citizens for Responsibility and Ethics in Washington; and Norman Eisen, Senior Fellow - Governance Studies, The Brookings Institution

    *This piece was originally published by The Brookings Institution.

    There are significant questions as to whether President Trump obstructed justice since taking office. We do not yet know all the relevant facts, and any final determination must await further investigation, including by Special Counsel Robert Mueller. But as we demonstrate in a new paper, “Presidential obstruction of justice: The case of Donald J. Trump,” the public record contains substantial evidence that President Trump attempted to obstruct the investigations into Michael Flynn and Russia’s interference in the 2016 presidential election through various actions, including the termination of James Comey.

  • October 10, 2017
    Guest Post

    by Ryan J. Suto, J.D., Government Relations Manager, Arab American InstitutePhoto: https://commons.wikimedia.org/wiki/User:Rhododendrites

    The Trump Administration’s consolidated Muslim Ban cases, Trump v. IRAP and Trump v. Hawaii, were set for oral arguments today, October 10. However, the president released a Proclamation late last month to replace the challenged Executive Order, prompting the Supreme Court to remove the case from the argument calendar and request briefs on October 5 detailing whether litigation surrounding the now overridden and expired Executive Order is moot and thus should be denied further consideration.

  • October 10, 2017
    Guest Post

    by Jeffrey S. Vogt, Legal Director, Solidarity Center

    Since the modern “rediscovery” of the Alien Tort Statute (ATS), starting with Filártiga v. Peña-Irala in 1980, corporations have been named as defendants in ATS cases. That corporations could be held liable under the ATS for jus cogens violations of customary international law had for years generated little controversy. In 1997, in Doe v. Unocal Corp, the first major ATS case against a corporation, the question as to whether corporations, as opposed to natural persons, could be held liable under ATS was not at issue. By 2008, the 11th Circuit Court of Appeals, in Romero v. Drummond Company, could quickly dispense with the issue holding that, “The text of the Alien Tort Statute provides no express exception for corporations[.]” This acceptance came to a halt when in 2010, the Second Circuit Court of Appeals, in Kiobel v. Royal Dutch Shell, held that corporations could not be held liable under the ATS because corporate liability was not sufficiently developed under customary international law (as opposed to US law). The US Supreme Court avoided addressing the issue when Kiobel was before it in 2013, instead finding a lack of jurisdiction over the Dutch, corporate defendant due to a presumption against extraterritoriality. Notably, not all courts followed Kiobel; the Seventh Circuit, in the 2011 case of Flomo v. Firestone National Rubber Company, kept the doors open to corporate ATS cases.  

  • October 10, 2017

    by Samuel Rubinstein, Strategic Engagement Fellow, American Constitution Society

    In North Carolina, the General Assembly is advancing a proposal that would add judges and district attorneys to a growing list of gerrymandered districts that already includes members of Congress and state legislators. The new maps will cut the number of judicial districts from eight to five, diluting the strength of urban votes. The new map cracks apart countywide districts in urban areas such as Wake and Durham counties. To accommodate their deliberations, the legislature moved to scrap judicial primaries planned for early next year, further tampering with voters’ choices.

  • October 6, 2017
    Guest Post

    by Richard C. Reuben, James Lewis Parks Professor of Law and Journalism, University of Missouri School of Law

    Chief Justice Roberts's concerns about the integrity of the court being diminished if the court starts hearing partisan gerrymandering claims is overwrought and disappointing.

    The truth is, ANYTIME the court opens up a new area, as sometimes it must to enforce the Constitution and especially the Bill of Rights, there will be some cases that will need to be decided to flesh out the details. Fear of more cases, for example, certainly hasn't deterred the court from deciding questions regarding the death penalty, abortion, and affirmative action to name just a few.

    What happens is that the court uses subsequent cases to provide additional guidance and things settle down as the lower courts learn to apply the new constitutional standards and only the cases that get to the court thereafter are where the courts of appeal are in significant disagreement.