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Friday, March 18, 2016

Judge Garland and the Future of Human Rights Litigation

It’s hard to deny that Judge Merrick Garland, President Obama’s nominee to the Supreme Court, is “is an amazingly qualified, brilliant judge,” even for commentators who think he’s a “bad choice.” He shouldn’t be blocked by Senate Republicans. He probably will be, though perhaps we’ll see a lame-duck hearing and confirmation vote. For now, there’s much to see --- and like --- in his jurisprudence on the D.C. Circuit.

For instance, I’d say his dissenting opinion in Saleh v. Titan Corp. is one to like. The question in that case was whether Iraqi nationals who were abused at the Abu Ghraib military prison could sue private military contractors for wrongs that both President George W. Bush and President Obama “repeatedly and vociferously condemned.” The panel held they couldn’t, reasoning that “tort law is preempted on the battlefield.” Judge Garland objected that the “country’s legal system [should] take its ordinary course and provide a remedy for those who were wrongfully injured.” Individuals who “were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors” should have a remedy under a state’s “traditional, generally applicable tort law.”

We shouldn’t lightly assume, in other words, that the United States’ foreign policy preempts an individual’s right to a remedy under state law. To the contrary, Judge Garland suggested, “facially neutral state tort law” may be an important source of remedies for international human rights violations.

If Judge Garland’s dissent in Saleh is any guide, then a Justice Garland might shift the future of human rights litigation in the United States. In recent years the Supreme Court has restricted human rights litigation under the Alien Tort Statute. In Kiobel v. Royal Dutch Petroleum Co., for example, the Court applied the presumption against extraterritoriality to limit claims in federal court under the ATS. State law might, however, step in to fill the remedial gap, as this symposium in the UC Irvine Law Review explored. In the “ordinary course,” as Judge Garland put it, our legal system “provide[s] a remedy for those who were wrongfully injured.” Whether the Court will let our system run its ordinary course in human rights cases is but one of many controversial questions that may be at stake with this nomination.

Posted by Seth Davis on March 18, 2016 at 01:11 PM | Permalink

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