An obscure sentence, penned by the first US Congress in 1789, has found its way to the forefront of human rights litigation, and is being utilized against multinational corporations. The statute, the Alien Tort Claims Act (“ATCA”), wielded by plaintiffs who have suffered human rights violations, has managed to pull multinational corporate giants, such as Coca-Cola Company, Yahoo!, Unocal, and ExxonMobil into US courts for alleged human rights violations committed on non-US soil with little nexus to the United States. While human rights plaintiffs have embraced the ATCA with increasing frequency and enthusiasm, businesses are “sounding the alarm” and painting nightmare scenarios of high punitive damages, negative economic impact, and international relations consequences.
ATCA litigation has been concentrated in the US Courts of Appeals for the Second, Ninth, and Eleventh Circuits. Initially, all three circuits, applying different standards of proof, recognized the possibility of a multinational corporate defendant’s liability for violations of a plaintiff’s human rights. In 2010, however, the Second Circuit in Kiobel v. Royal Dutch Petroleum Company ruled that human rights plaintiffs could no longer bring claims of corporate liability under the ATCA, thereby closing the circuit’s door to such cases.
This Note examines the newly-created circuit split between the Second Circuit and the Ninth, and Eleventh Circuits regarding corporate liability. Part I introduces the ATCA, chronicling its transformation from a short provision in the Judiciary Act of 1789 to the weapon of choice employed against international corporations for alleged human rights violations. Part II focuses on the newly-created circuit split, identifying important case law and the current standing of ATCA human rights corporate liability in all three circuits. Emphasis is placed upon the international implications of and reactions to these decisions. Finally, Part III concentrates on the international implications of the split and advances the argument that the Second Circuit correctly decided Kiobel in light of the ATCA’s purpose and the potential impact that continued ATCA litigation poses to US external relations.
2. David Kelch, Help Me Help You: An Answer to the Circuit Split Over the Delegation of Post-Sentence Judicial Authority to Probation Officers, 116 Penn. St. L. Rev. 553 (2012).
Abstract
Our criminal system routinely deals with such matters as the life and death and intertwined fates of criminals and their victims. Other than lawyers, judges, and the defendants and victims themselves, there is perhaps no one more intimate with the application of criminal justice than the probation officer. These “eyes and ears of the court” are given considerable responsibility in two phases of the criminal justice process. First, they are utilized between conviction and sentencing to conduct a pre-sentence investigation that, almost exclusively, is relied on by the court to determine the appropriate sentence for the defendant. Next, the probation officer is responsible, among other things, for “aid[ing] [the] probationer . . . to bring about improvements in his conduct and condition.” Other than the judges and juries, is there anyone so bound up with the fate of defendants than the probation officer?
Currently, a split among the circuit courts of appeals exists regarding the appropriate degree of delegable “judicial authority” to a probation officer during the post-sentence time-period. Probation officers could be given limitless discretion to modify the offender’s sentence in light of changing circumstances. Conversely, officers could be given no authority to modify, change, or adapt the sentence, leaving no option but to apply for court-ordered modification. Of course, as this Comment proposes, the proper amount of authority that should be delegated lies between these extremes.
3. Angela Galloway, A 'Narrow Exception' Run Amok: How Courts have Misconstrued Employee-Rights Laws’ Exclusion of 'Policymaking' Appointees, 86 Wash. L. Rev. 875 (2011), available at http://ssrn.com/abstract=1980438.
Abstract
The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption common to five landmark employment statutes. Each statute defines “employee” for its purposes to exclude politicians and certain categories of politicians’ appointees — including government employees appointed by elected officials to serve at “the policymaking level.” Neither Congress nor the United States Supreme Court has defined who belongs to the “policymaking-level” class. Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split. At stake in this employment law vagary are basic worker rights guaranteed by major federal statutes. The U.S. Supreme Court or Congress should articulate a lucid definition for the exception for appointees on the “policymaking level” that honors Congress’s intent for a narrow exception: the exemption should apply only to positions characterized by both a direct working relationship with the appointer and an explicit duty to make substantive policy.
4. Donald S. Bernstein, Brian Resnick, & Hilary Dengel, Thirty-Seventh Annual Lawrence P. King and Charles Seligson Workshop on Bankruptcy and Business Reorganization (July 22, 2011),
The Logic and Limits of Credit Bidding by Secured Creditors Under the Bankruptcy Code (Sept. 2011),
available at http://ssrn.com/abstract=1975932.
Abstract
Outside of bankruptcy, the right of a secured creditor to “credit bid” allows the secured creditor to compete with cash bids in foreclosure to assure that the secured creditor’s collateral is not sold for less than the secured creditor thinks it is worth. In reorganization cases under chapter 11 of the Bankruptcy Code, credit bidding performs a similar function: It insulates the secured creditor from being cashed out at a time of depressed asset values and protects the secured creditor from the risk of suffering a “bankruptcy discount,” which some assert can occur in connection with chapter 11 sales. While some have argued that credit bidding “chills” bidding by third parties by permitting the secured creditor to “overbid” with currency that may be of little or no value, this criticism seems misplaced. If the value of the collateral is less than the amount of the secured creditor’s claim, the secured creditor would not credit bid if it expected third parties to offer a fair price in the absence of a competing bid from the secured creditor and the secured creditor would be the one who would suffer if appropriately priced bids were deterred.
A circuit split – one of the most significant for secured creditors in recent years – has developed over whether the absolute priority rule as applied under the Bankruptcy Code requires that dissenting secured creditors be afforded the right to credit bid at a sale of their collateral pursuant to a chapter 11 plan of reorganization. The Third and Fifth Circuits, in the cases of In re Philadelphia Newspapers, LLC and In re Pacific Lumber Co., respectively, have taken the view that secured creditors may be precluded from credit bidding at a sale pursuant to a plan. The Seventh Circuit, in In re River Road Hotel Partners, LLC, recently took the opposite view. On December 12, 2011, the United States Supreme Court granted certiorari to resolve this issue.
This article first explores secured creditors’ rights to credit bid under state law, as well as pre-Code law supporting the right in bankruptcy of a secured creditor to credit bid. Next, the article considers case law addressing credit bidding under the Bankruptcy Code, including the rarely disturbed right to credit bid at sales conducted outside a reorganization plan pursuant to section 363 of the Bankruptcy Code and the interplay between sections 1111(b) and 1129(b)(2)(A) of the Bankruptcy Code in connection with sales of collateral under a plan. Finally, the conflicting circuit court opinions are reviewed in detail, and the proper interpretation of the absolute priority rule (the so-called “fair and equitable” test) in the context of a sale of collateral under a plan is considered.
