Shifting Sands for the Stateless Under the Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act (FSIA) grants foreign sovereigns immunity from suit in U.S. courts, but also sets forth some exceptions. One exception to a foreign sovereign’s immunity occurs if its expropriation of property violates international law. Where the sovereign has expropriated property from its own nationals, however, the sovereign still remains immune from suit. This “domestic takings” rule is consistent with general principles of international law, although international law increasingly has been challenging a State’s right to mistreat its own nationals. In 2023, in Simon v. Republic of Hungary, the D.C. Circuit considered the issue of stateless plaintiffs, and held that they have no standing to sue foreign sovereigns under the FSIA. The court relied heavily on the Restatement (Second) of Foreign Relations in its reasoning. The Supreme Court subsequently granted certiorari, but only agreed to review other issues in this case, thus leaving the D.C. appellate court’s decision in place with respect to stateless individuals. Simon was decided after it arose on remand from the U.S. Supreme Court’s decision two years earlier (2021), heard in conjunction with Federal Republic of Germany v. Philipp, and remanded per curiam to be consistent with the Philipp opinion. The Supreme Court had directed the lower courts to consider plaintiffs’ nationality at the time of the alleged property expropriations for purposes of determining FSIA jurisdiction. In Philipp, the context was Nazi German expropriation of Jewish-owned property, and in Simon, Hungary’s expropriation of Jewish-owned property under antisemitic laws. This article considers the 2023 D.C. circuit court’s holding in Simon in light of indications and implications concerning the standing of stateless FSIA plaintiffs to be garnered from the Supreme Court’s Philipp decision; the evolution of FSIA case law on the issue of standing; the U.S. Restatements of Foreign Relations; and international law. It concludes that a better interpretation of the FSIA does allow standing for stateless individuals

Ensnared by Custom: Mary Astell and the American Bar Association on Female Autonomy

Rhetoric—the arts of practical discourse that we broadly define as the use of symbols to influence belief and action—has something to say about contemporary legal theory and practice. Law and rhetoric in the West were born together nearly 2500 years ago in the Mediterranean. American law has eschewed its rhetorical roots since the late nineteenth century. Denying law’s rhetorical nature helps to construct an impartial façade, shoring up law’s legitimacy. Admitting the rhetorical nature of law would be to admit its partiality, or the point of view inevitably inscribed with every textual choice. At the same time, rhetorical theorists have turned their attention to many subjects other than law. Though many rhetorical scholars today still study legal rhetoric, much of their focus is on high-profile court cases and Supreme Court opinions. This volume’s contributors believe it is time for an expanded conversation between law and rhetoric, placing a broader variety of legal texts in conversation with a broader variety of rhetorical traditions than is typically available. Each essay here makes a connection between one or more significant texts on rhetoric and contemporary legal texts.https://ir.law.utk.edu/book_chapters/1045/thumbnail.jp

Crown Prosecutors and Government Lawyers: A Legal Ethics Analysis of Under-Funding

Crown prosecutors and government lawyers are reliant on governments for their funding but exert no meaningful influence or control over such funding decisions. Nonetheless, this article demonstrates that as a question of law, under-funded Crown prosecutors and government lawyers risk violating their professional duties. If so, they must promptly inform the government, refuse new matters and, if necessary, withdraw from existing matters. If the government purports to block such refusal or withdrawal and does not provide adequate funding, resignation will become necessary. While law societies will likely not prioritize disciplinary action against such lawyers, the policy reasons to forego such proceedings do not mean that the legal answer is wrong and should or will change. This discordance with practical reality demonstrates that legal ethics generally – and the rules of professional conduct more specifically – do not adequately appreciate the practice settings of government lawyers and Crown prosecutors. Nonetheless, any changes to the legal framework governing all lawyers should be considered carefully as they would have major implications for the regulation of the legal profession

Transforming Constitutional Doctrine Through Mandatory Appeals from Three-Judge District Courts: The Warren and Burger Courts and Their Contemporary Lessons

Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This article makes several contributions regarding the important changes in these doctrines during the Warren Court (1954-1969) and the early Burger Court (1969-1976), before Congress in 1976 limited the scope of three-judge courts and the concomitant mandatory appeals. It documents the number of such cases during the time periods in question; addresses the quantitative and qualitative changes in Equal Protection and Due Process (and other) doctrines influenced, at least in part, by the availability of mandatory appeals; and normatively addresses the propriety of this influence in light of the renewed interest in reestablishing at least some mandatory appeals in current proposals to “reform” the Supreme Court

Legal Ethics for Government Lawyers: Lessons from Nunavut

While government lawyers face legal ethics issues unique to that practice context, those issues are overlooked in the rules of professional conduct in all but one Canadian jurisdiction: Nunavut. In this comment, I canvass several provisions that are unique to the Code of Professional Conduct of the Law Society of Nunavut. These provisions are inexplicably overlooked in the Canadian legal ethics literature to date. I then assess how these provisions address the legal ethics issues unique to government lawyering. Finally, I argue that the Nunavut provisions should be considered a starting point and I consider additional changes that could be made to further recognize the realities of government lawyering

The Merging of Ownership and Control

What if shareholders controlled every decision their company makes? This seemingly simple idea threatens to upend the modern corporation. Shareholders own the corporation and directors and officers manage the corporation—a “separation of ownership and control” that has become a defining characteristic of our modern economy. As per conventional wisdom, the law enables separation of ownership and control by not prohibiting owners and employees from exercising their contractual freedom to hire and work for one another. This Article demonstrates that this widely held view is incomplete and detrimental to the economy. Much of the economic activity that utilizes the corporate form has relied on a legal mandate, rather than permission, to establish the separation between ownership and control. While ordinary employer-employee contracts, such as an agreement between a store owner and store clerk, rely on the parties’ ability to contract for and alter fiduciary arrangements on an ongoing basis, many shareholders pool their money together to hire directors for the exact opposite reason. They rely on the mandatory separation of ownership and control in order to effectively combine their assets under the direction of a fiduciary who answers only to the firm, and not any individual investor. Absent the ability to rely on a legally mandated independent director, such shareholders would not be able to coordinate and combine their assets. The shareholders’ various competing interests and rights would be too conflicting and complex to organize contractually. Yet, an amendment signed into law in July 2024 is set to unravel this economically essential legal mechanism—it promises to merge ownership and control. This legislation was able to pass at least partly because extant scholarship lacks a theory to explain why a mandatory separation of ownership and control is an indispensable mechanism. This Article fills this gap and calls for the repeal of this watershed amendment

The Value of a Statistical Life: From Skin in the Game to Vision Zero

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy—the justice—of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. While economists are careful to say that this figure does not “really” represent an attempt to value any particular life, the purpose of even calculating the number is to provide an “aggregated” statistical justification for saying “no” to rules requiring safer work. This seems acceptable until you, or someone you love, is a person at significant risk of being killed. One of the earliest moral and religious challenges, central to constructing modern employment law, was how to deal with workplace harm. Scholars have shown that the perceived inability of tort law to remedy workplace injury and fatality led to a veritable remaking of American law—through establishment of workers’ compensation—that was, in effect, the prelude to the administrative state, and therefore effectively of all employment law. The moral-ethical dilemma—of work related injury and death—remains a central problem of workplace law. The AFL-CIO estimates that in 2022—the most recent year for which data was available as of the writing of this essay—5,486 employees were killed on the job in the United States; and 120,000 workers died from occupational diseases. During a time of modern, putatively-safe working conditions, these statistics seem almost incredible. At first blush, moral policymaking suggests that the societal reaction to death and injury at work should simply be to stop killing workers. But requiring safer workplaces costs “money.” And the moral question is: how much as a society are we willing to spend to prevent death in the workplace? “Cost-benefit considerations” are inherently moral. One who—because of racial or class positioning in a society, for example—is not likely to be harmed by an activity, may have a great deal of difficulty accurately assessing the moral significance of a risk of harm for others arising from the activity; or in determining whether a certain quantity of risk should be assumed by workers in the broader social interest. Regulatory “weighing” is the province of economists, not that of workers who are actually exposed to workplace risks of harm and death. Those who argue that strong emotional responses to “fearsome risks” are irrational because of the risks’ putatively low probabilities of leading to harm are typically—perhaps predictably—not exposed to such risks and may suffer from an upper class “anti-safety bias.” It will always be possible to articulate the costs to employers of making workplaces safer, and the benefits to employers of not having to make workplaces safer. Assessment of cost on the worker’s side of the ledger is much more difficult to quantify because it involves the quasi-mystical—and not dollar expressible—question of the worth of life. And the ethical and democratic problem posed is whether the persons asking such questions have sufficient “skin in the game” to be asking the questions or evaluating the answers. The essay reflects on the EU’s “Vision Zero” goal of killing no one in the workplace. It is one thing to admit that it is presently impossible to avoid killing workers on the job. It is another thing to insist that the national goal should be killing no workers at work. Arguing for such insistence, the essay concludes by observing that employers are in fact capable of being much safer than they are