Steve Sanders, who is a Visiting Assistant Professor at the University of Michigan Law School, has posted The Constitutional Right to (Keep Your) Same-sex Marriage: Why the Due Process Clause Protects Marriages that Cross State Lines, Even if Conflict of Laws Cannot on SSRN. Here is the abstract:

Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of marriage.

In this paper I argue that an individual who legally marries in her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that prevents a mini-DOMA state from effectively divorcing her by operation of law. This right to marriage recognition is conceptually and doctrinally distinguishable from the constitutional “right to marry.” It is a neutral principle, grounded in core Due Process Clause values: protection of reasonable expectations and of marital and family privacy; respect for established legal and social practices; and rejection of the idea that a state can sever a legal family relationship merely by operation of law. A mini-DOMA state will, of course, have interests to be considered in refusing to recognize certain marriages. But under the intermediate form of scrutiny I explain is appropriate, those interests do not rise to a sufficiently important level to justify the nullification of a migratory same-sex marriage.

Private International Law

* Inaugural Conference (30 July)
Conflicts of Laws and Uniform Law In Contemporary Private International Law : Dilemma or Convergence?
Didier OPERTTI BADÁN; Professor at the Catholic University of Montevideo.

General Course (6-17 August)
The Law of the Open Society
Jürgen BASEDOW; Director of the Max Planck Institute for Comparative and International Private Law, Hamburg.

The Private International Law Dimension of the Security Council’s Economic Sanctions (30 July-3 August)
Nerina BOSCHIERO; Professor at the University of Milan.

* The New Codification of Chinese Private International Law (30 July-3 August)
CHEN Weizuo; Professor at Tsinghua University, Beijing.

Applying Foreign Public Law in Private International Law – A Comparative Approach (30 July-3 August)
Andrey LISITSYN-SVETLANOV; Professor at the Institute of State and Law, Russian Academy of Sciences, Moscow.

* Party Autonomy in Private International Law: A Universal Principle between Liberalism and Statism (6-10 August)
Christian KOHLER; Honorary Director-General at the Court of Justice of the European Union, Luxembourg.

Applying the most Favourable Treaty or Domestic Rules to Facilitate Private International Law Co-operation (6-10 August)
Maria Blanca NOODT TAQUELA; Professor at the University of Buenos Aires.

* Bioethics in Private International Law (13-17 August)
Mathias AUDIT; Professor at the University of Paris Ouest Nanterre La Défense

Compétence-Compétence in the Face of Illegality in Contracts and Arbitration Agreements (13-17 August)
Richard H. KREINDLER; Professor at the University of Münster

* Lectures delivered in French, simultaneously interpreted into English.

More information is available here.

An interesting recent decision of the Full Court of the Federal Court of Australia, Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95, considers the role of comity and the interrelationship of public and private international law in the context of taking testimony from a witness outside the court’s territorial jurisdiction.

The issue arose in civil proceedings in the Federal Court of Australia about misrepresentations said to have been made in Australia about the purchase of land in Dubai. Several witnesses (mainly Australian citizens) were located in Dubai, and although they were willing to testify, they were unable to travel to Australia to give evidence in person.

Under the Federal Court’s rules, the two options were either for the judge to travel to Dubai to take evidence on commission, or for the witnesses to give evidence by video link. Approaches through diplomatic channels revealed at best an ambiguous attitude on the part of the UAE government about whether either course would be acceptable to it, but UAE lawyers gave evidence to the Australian court that there were no local statutes prohibiting either means of taking evidence.

The trial judge was concerned, in the light of diplomatic correspondence placed before him, that there was no evidence “that the UAE government would permit the taking of evidence by video link” and that to do so “without that permission, … would be seen to be, or could be seen to be, a subversion of a refusal by a sovereign government to permit the taking of evidence on commission on its soil.” Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 9) [2011] FCA 832 at [40]

Referring to remarks in Yamouchi v Kishimoto (2002) 12 NTLR 32 and Bell Group Ltd (In Liq) v Westpac Banking Corporation (2004) 208 ALR 491, his Honour considered that to take evidence by video link was, in effect, to exercise the judicial power of the Commonwealth of Australia in the foreign country in which the witness was sitting; and that even if the witness testified voluntarily, the exercise of the Australian court’s powers could be viewed as an infringement of that foreign jurisdiction’s sovereignty in the absence of clearer consent than was available in the present case. Given the diplomatic involvement of the Australian Department of Foreign Affairs and Trade, his Honour was especially wary of being perceived by a foreign sovereign as having acted unilaterally. In that context, he refused to order that evidence be taken by video link from Dubai.

The Full Court reversed that conclusion. Keane CJ, Dowsett and Greenwood JJ discussed the role of comity when taking evidence from witnesses overseas (whether on commission or by video link). Their Honours quoted a number of sceptical statements about the value of comity as a guiding principle, including the trenchant remark of Perram J in Habib v Commonwealth (2010) 183 FCR 62 at [27] that: “No doubt comity between the nations is a fine and proper thing but it provides no basis whatsoever for this Court declining to exercise the jurisdiction conferred on it by Parliament.”

Reviewing the Australian statute on taking evidence by video link, their Honours remarked that it:

does not require that the foreign state consent to a person within its borders giving evidence by video link to an Australian court. If the Parliament perceived any problem arising out of the concept of sovereignty or that of comity, then it seems to have overridden any obligation which Australia may have had in that regard. … We see no justification for imposing upon the exercise of the discretion conferred by [the statute] a requirement that the other state consent to the taking of evidence in that way. [at [60]]

Their Honours concluded that:

in exercising the discretion [to take evidence by video link], the Court is not hampered by any need to consider questions of sovereignty or comity between nations, at least absent any law forbidding such conduct, and subject to the question of whether an oath or affirmation should be required. To the extent that his Honour disposed of the matter upon the basis that questions of sovereignty and comity were relevant, he took into account irrelevant considerations. The exercise of the discretion miscarried. [at [62]]

Australian courts quite regularly take evidence by video link, and it is unusual for a party (in this case, the defendants) to have objected so vehemently, especially as the witnesses were themselves willing to testify. The subtext, it seems, was that one of the unavailable witnesses was the plaintiff himself: the defendants would have benefitted from a permanent stay or non-suit in the event of his inability to testify.

Perhaps of most interest to international readers is the sceptical attitude of the Full Court towards judicial comity in international litigation. This could perhaps be seen as part of a wider trend towards robust individualism on the part of the Australian courts when it comes to the exercise of their jurisdiction in cross-border cases (another example being the remarkable tenacity of Australian courts in forum non conveniens cases). It is also an example of the less deferential attitude taken by the Australian courts towards the executive government’s conduct of foreign relations in recent times (Habib v Commonwealth (2010) 183 FCR 62 being the most notable example).

Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95 (19 August 2011)

 

Anthony Bellia (Notre Dame Law School) and Bradford Clark (The George Washington University Law School) have published an article on the Alien Tort Statute and The Law of Nations in the last issue of the Chicago Law Review. The abstract reads:

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided “[t]hat the district courts . . . shall . . . have cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took a more restrictive approach. Seeking to implement the views of the First Congress, the Court determined that Congress wished to grant federal courts jurisdiction only over a narrow category of alien claims “corresponding to Blackstone’s three primary [criminal] offenses [against the law of nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy.” In this Article, we argue that neither the broader approach initially endorsed by lower federal courts nor the more restrictive approach subsequently adopted by the Supreme Court fully captures the original meaning and purpose of the ATS. In 1789, the United States was a weak nation seeking to avoid conflict with other nations. Every nation had a duty to redress certain violations of the law of nations committed by its citizens or subjects against other nations or their citizens—from the most serious offenses (such as those against ambassadors) to more commonplace offenses (such as violence against private foreign citizens). If a nation failed to redress such violations, then it became responsible and gave the other nation just cause for war. In the aftermath of the Revolutionary War, Congress could not rely upon states to redress injuries suffered by aliens (especially British subjects) at the hands of Americans. Accordingly, the First Congress enacted the ATS as one of several civil and criminal provisions designed to redress law of nations violations committed by United States citizens. The ATS authorized federal court jurisdiction over claims by foreign citizens against United States citizens for intentional torts to person or personal property. At the time, both the commission of—and the failure to redress—such “torts” violated “the law of nations.” The statute thus employed these terms to create a self-executing means for the United States to avoid military reprisals for the misconduct of its citizens. Neither the ATS nor Article III, however, authorized federal court jurisdiction over tort claims between aliens. Indeed, federal court adjudication of at least one subset of such claims—alien–alien claims for acts occurring in another nation’s territory—would have contradicted the statute’s purpose by putting the United States at risk of foreign conflict. Despite suggestions that the true import of the ATS may never be recovered, the original meaning of the statute appears relatively clear in historical context: the ATS limited federal court jurisdiction to suits by aliens against United States citizens but broadly encompassed any intentional tort to an alien’s person or personal property.

The third issue of French Journal du droit international (Clunet) for 2011 was just released.

It includes three articles, two of which might be of interest for readers of this blog.

In the first one, Sabine Corneloup, who is a professor of law at the university of Burgundy, explores how an EU law of nationality is currently developing (Réflexion sur l’émergence d’un droit de l’Union européenne en matière de nationalité). The English abstract reads:

The nationality of a Member State is to be determined exclusively on the basis of the national law of that Member State, but each Member State must exercise this competence with due regard to EU law. The ECJ ensures in particular that the legal effects of the possession of the nationality of a Member State are recognized without any restriction. This control affects mainly the national treatment of multiple nationalities. However, the control of the ECJ goes even further and defines also the conditions of loss of the nationality of a Member State. An inventory of the European case law is drawn up. It shows that the ECJ exceeds the Union’s competence determined by the treaties. A European framework for the nationality laws of the Member States requires the adoption of specific legal instruments. Some proposals are specially made to resolve positive conflicts of nationalities which may arise in the application of EU law.

In the second one, Giulio Cesare Giorgini, who lectures at Nice University (that is, the university of the city of Nice), wonders whether the plurality of methods of private international law should be abandoned in international business law (Les limites des méthodes en droit international des affaires . – Pour dépasser une simple lecture économique). The English abstract reads:

International business law is a law of pluralism : pluralism of sources, pluralism of actors, pluralisms of goals, pluralism of methods. However, determining and articulating the domain of these methods is difficult. National legal systems have sometimes rules in order to address this issue but their logic – a logic of authority – seems less satisfactory in this specific field. The article examines the possible solutions in order to suggest that usual approaches must be abandoned. Thus measuring the rational coherence of the concurrent norms may reconcile international business law legal pluralism and the uniformity of its purpose.