Category: General Law


Call For Papers

ALPS will hold its 10th Annual meeting at Syracuse University, in Syracuse New York, May 16-18. The dates include a pre-conference reception on the evening of May 16; full day meetings on May 17-18, each with continental breakfast, lunch, and light reception; and an optional field trip during the day on May 16. Field trip detail will be available prior to registration and tentatively include a visit to the Oneida Indian Nation of New York. The Oneida Indian Nation is one of the original members of the Haudenosaunee people (also known as the Six Nation of the Iroquois). 
Paper submissions on any subject related to property law and the practices that shape property norms and institutions are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 4 presenters, sometimes including films or multimedia outputs). Individually organized sessions of full panels may have as few as 3 presenters; all sessions with individually submitted papers will typically have at least 4 presenters. Submissions may be of full paper drafts and completed projects, or early works-in-progress. 
More details are available here  

Jury Unanimity in Criminal Cases

One interesting result yesterday was that Louisiana approved a state constitutional amendment providing that juries must be unanimous to convict a defendant of a crime. This means that only one state–Oregon–says that in some criminal cases there can be a conviction without a unanimous jury.

In a fractured decision 46 years ago, the Supreme Court held that the Sixth Amendment as incorporated against the states permitted non-unanimous jury verdicts in criminal cases. If a case arises from Oregon presenting this question, the Court should grant review and make clear that the Sixth Amendment requires unanimous jury verdicts in all criminal cases. There is, though, a chance that Oregon will reform its own law and render the issue moot.


The Puny James Madison

James Madison did not always have the stellar reputation that he now does. Indeed, until the twentieth century nobody few paid attention to Federalist #10, now seen as the most important of those essays. In my edition of Messages and Papers of the Presidents, Senator Albert Beveridge of Indiana (and biographer of John Marshall) wrote the introduction to the Madison section. Here is part of what he said:

His character was not masterful. He was a follower of mightier men. He was easily influenced by such lordly wills as Hamilton, easily seduced by such subtle minds as Jefferson. Thus his public service was a series of contradictions, compromises, doubts and fears. . . . Between those tremendous mountain peaks of power, Hamilton and Jefferson, standing over each other, Madison was the valley.


Barry Goldwater on Political Contributions by Unions and Corporations

One of the curiosities in my library is Barry Goldwater’s book The Conscience of a Conservative, which launched his presidential campaign and was an important political text in the 1960s. In a discussion of the evils created by labor union donations to politicians when not all union members agreed, Senator Goldwater said the following:

In order to achieve the widest possible distribution of political power, financial contributions to political campaigns should be made by individuals and individuals alone. I see no reason for labor unions–or corporations–to participate in politics. Both were created for economic purposes and their activities should be restricted accordingly.


The dark history of the whiteness of milk

Milk is having a moment lately. A dark moment. Or, more to the point, a white moment. As the recent NY Times article Why White Supremacists Are Chugging Milk (and Why Geneticists Are Alarmed) explained, white nationalists and members of the so-called alt-right have been using milk as a symbol of white supremacy since the early days of the Trump presidency. It started with an event that has since been dubbed “the milk party,” in which a large group of white men gathered in front of a livestreaming camera on the streets of New York City carrying cartons of milk and voicing everything from off-color taunts to explicitly racist, sexist, anti-Semitic, and homophobic rants. The atmosphere was raucous. After taking a swig of milk from his carton, one barechested man approached the camera and sneered. “An ice cold glass of pure racism,” he growled into the lens.

After that night, milk quickly went viral, joining the ranks of Pepe the Frog and the “okay” emoji as symbols of twenty-first century, post-Obama white supremacy. Pro-Trump supporters carried cartons of it to rallies. The hashtag #MilkTwitter was used in hundreds of tweets explicitly connecting milk with racist memes and sentiments. Richard Spencer added a milk-bottle emoji to his Twitter profile with the phrase “I’m very tolerant… lactose tolerant!”


This all may sound like the sort of fringe phenomenon that is best ignored, dismissed, or shrugged off as being nothing more than the provocative antics of far-right trolls. But not only is racist humor cloaked in irony worth taking seriously, this is not milk’s first rodeo with hate and ignorance. Far from it. In fact, the story of milk’s relationship with racism, sexism, colonialism, and other forms of oppression is notable in large part because of just how not-fringe it is. It’s a story about the rhetoric of modernity, progress, and scientific advancement, and features an esteemed cast of characters including university scientists, USDA publicists, the US National Dairy Council, the FDA, and the U.S. Code. And it’s a story with huge implications for the future of US food policy in the decades to come.

Over the next several weeks I’ll be telling the tale of the sinister side of milk. Today I’m taking you back in time to the late 19th century, to the years surrounding the passage of the first US immigration law that excluded an entire ethnic group, the Chinese Exclusion Act.

A “wretched, impotent, and effeminate race”: the gendered and racial politics of food

Exclusion of Chinese. The Cooly Trade. Those are the names of Chapters 7 and 8 of US Code Title 8: Aliens and Nationality. Yes, today’s US Code. The laws themselves have been repealed, but the ghost of them remains alive and well in those chapter titles—and, some would argue, in current-day politics around race, immigration, and food policy.

The United States had a policy of relatively free and open immigration during the 18th and early 19th centuries; the policy was rarely questioned until the late 1800s. The California Gold Rush in the mid-1800s brought with it a surge of immigration from China, which continued as Chinese immigrants sought jobs in agriculture, mining, railroad construction, restaurant, laundry, and other industries.

While Chinese immigrants represented the largest group of nonwhite immigrants who came to the United States between 1870 and 1880, they comprised only 4.3% of all immigrants who entered the country during that time. That said, they were viewed by many with vitriol, accused of stealing jobs from white workers. They were also accused of being dirty in mind and in body, accused of spreading disease and “moral and racial pollution” to American cities. Chinese men were also seen as undermining acceptable gender roles by engaging in jobs like cleaning and cooking, which were seen as “women’s work.”

These widespread anti-Chinese sentiments were bolstered by the opinions of respected experts who perpetuated racist ideologies under the guise of science. Much of that science concerned a perceived link between physical and mental strength (or weakness) and diet. Eating animal-based foods like meat and dairy was associated with intellectual superiority and virile masculinity exemplified by the white western man, while plant-eating was associated with Asian cultures and was thought to represent emasculation and to confer weakness of both mind and body. As E. Melanie DuPuis noted in Angels and Vegetables: A Brief History of Food Advice in America, “the racial rhetoric of the day . . . portrayed Asians as effeminate and enfeebled and the Chinese ‘leaf diet’ as a cause of degeneracy.”

In 1884 American neurologist named James Leonard Corning published Brain exhaustion, with some preliminary considerations on cerebral dynamics, in which he sought to explore the numerous ‘demands upon the thinking apparatus’ as well as possible remedies for a range of ‘mental phenomena.’ Corning spoke in one chapter of ‘defective brain nutrition’ and the role between various types of food on the brain’s development, health, and disease. In one passage, Corning linked the perceived intellectual inferiority of Chinese people to the (supposed) plant-based, milk-and-meat-deficient nature of their diets:

Where mental courage, tenacity of purpose, and concentrated energy are required the introduction of large quantities of fibrin and albumen into the system produces the most marvelous results. Thus, flesh-eating nations have ever been more aggressive than those peoples whose diet is largely or exclusively vegetable. The effeminate rice-eaters of India and China have again and again yielded to the superior moral courage of an infinitely smaller number of meat-eating Englishmen’ (emphasis added).

Not only were Chinese and other Asian people intellectually weak because they ate plants, argued Corning, but white people were intellectually superior because they ate animals (and drank milk), noting that the “most wonderful instance of the intellectual vigor of flesh-eating man is the unbroken triumph of the Anglo-Saxon race.” Corning’s medical opinions were shared by many of his peers: a year before he published Brain exhaustion, a respected Australian doctor named Stephen Mannington Caffyn published How, When, and What to Eat: A Guide to Colonial Diet, in which he cautioned that “[w]e might expect to find rice-eaters everywhere a wretched, impotent, and effeminate race, and such is the case.”

That medical experts like Corning and Caffyn perpetuated these racist and sexist tropes and grounded them in “science” gave significant legitimacy to these sentiments, leading to what Carol Adams described in her landmark work The Sexual Politics of Meat as a “racialized politics of meat” that worked to split the “world into intellectually superior meat eaters and inferior plant eaters.” The same could be said of milk as well.


The Chinese Exclusion Act was passed in 1882 with widespread support from lawmakers, many of whom called Chinese immigrants “rats,” “beasts,” and “swine” while the bill was being debated. Former Union general and California senator John F. Miller introduced the bill referring to the Chinese as a “degraded and inferior race.” The sentiment was widespread and long-lasting, and was sometimes linked back to the role of food: a 1902 report published by the American Federation of Labor (AFL) supporting the Chinese Exclusion Act framed the union’s views on Chinese immigration in terms of diet, titling it “Meat vs. Rice: American Manhood vs. Asiatic Coolieism, Which will Survive?

Even Justice John Marshall Harlan, whose lone dissent in the infamous 1896 case Plessy v. Ferguson upholding the constitutionality of the “separate but equal” doctrine is widely seen as an example of courage and strength of character, viewed Chinese people worthy of distain and exclusion. “The white race deems itself to be the dominant race in this country,” he wrote in his Plessy dissent. “And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” He went on to note without hesitation or critique that “[t]here is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” While Harlan used this example as a way to point out the absurdity of the “separate but equal” doctrine—explaining that by “the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana [cannot]”—it underscores the extent to which Chinese immigrants were vilified at every level of power and in every corner of American life.

The Chinese Exclusion Act was amended and expanded in 1924 to prevent citizens of other Asian nations from immigrating to the United States, and remained in effect until it was repealed in 1943. During and immediately after World War I, US animus toward Asian people took on a renewed significance. As DuPuis explained, as the “need for strong and aggressive bodies to fulfill national imperial ambitions” led to the “politics of ingestion [becoming] caught up in questions about the physical strength of the armed forces.” In the process, bodies “were compared across races and nations, and so it was that the Asian body came to represent nutritional deficiency in American gastropolitical discourse at this time.” Specifically, continued DuPuis,

[t]he Asian body became the sign of colonial subjection and effeminacy, while the tall, meat-eating and milk-drinking masculine American working-class body signified the superiority of the white diet. This characterization served as justification for white imperial projects in the post–World War I era. Colonial non-meat eaters were viewed as conquered peoples, defeated by diet. In their shared disdain for nonwhite races, the working and middle classes found a common identity as members of a powerful nation.

Next time: dairy milk’s role in crafting modern tropes of idealized white masculinity.


Introducing Guest Blogger -ISELIN GAMBERT


Concurring Opinions is delighted to introduce guest blogger Iselin Gambert!  Iselin, who is one of my colleagues at GW Law School,  is a professor of legal writing.  She teaches courses in legal rhetoric and communication and coordinates the law school’s Writing Center. In her scholarship, she seeks to ask timely questions about the ways in which political, legal, linguistic, and cultural forces impact our daily lives and our relationship with food and other animals. Her current scholarly projects revolve around the use of language and rhetoric as a tool in cultural, political, and legal debates around sexism, racism, food policy, and the exploitation of animals. Her article —Got Mylk? The disruptive possibilities of plant milk– is forthcoming in the Brooklyn Law Review, and was recently identified as a “Notable & Quotable” by the Wall Street Journal.

Welcome Iselin!


Supreme Court Hate Mail–1820s Style

Bushrod Washington received an anonymous letter in 1822 criticizing his recent sale of slaves. The letter apparently came from a Cajun in Louisiana, and reads in part:

Je take la libertie of writing to vous—Je have heard of votre character in Louisiana, where vous rend votre Slaves . . . Vous suppose you are great because named Washington—you imagine you may commit crimes with impunitee. Wretched being le time is coming when vous have to answer for votre base crimes . . . Le Spanish Pirate is better than vous. You send votre fellow mortals to a land of miserie. Vile petit villain how can vous look a manly man in le face. Votre withered hellish countenance black with le deeds of hell . . . Your brains ought to be blown out, vous stinkin Cur . . . Adieu, Je remain votre implacable enemy.




United States v. Passmore

Here’s an interesting question that I’ve come across in a Bushrod Washington case. Suppose someone commits perjury as part of a judicial proceeding under a statute. The statute is then repealed. A prosecution for perjury is brought. The defendant argues that he cannot be convicted for perjury given the statutory repeal.

At first blush, I would have thought this was a bad argument. The Court, though, instructed the jury that they should acquit because of the repeal. Now this was a political case (for reasons I’ll skip over for now), and that may explain the instruction. I’m curious to hear whether criminal lawyers would think this good law now.


Jam v. International Finance Corporation: Nine misconceptions from the Supreme Court argument

(Marco Simons is General Counsel at EarthRights International, and counsel for the petitioners in the Jam case. He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Yesterday, the Supreme Court heard argument in Jam v. International Finance Corporation (IFC), where the question is the degree of immunity that international organizations (IOs) enjoy in U.S. courts. In brief, the International Organizations Immunities Act (IOIA), 22 U.S.C. § 288a, provides that IOs “shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” It is the meaning of those eighteen words that the Supreme Court will decide. Does that mean the immunity that foreign governments received in 1945, when the IOIA was enacted? Or the immunity that they receive today, with its exceptions for injuries in the United States and commercial activities under the “restrictive theory” of immunity?

I may be biased, but I think the answer is clear; “the same . . . as is enjoyed” means the same as currently enjoyed by foreign governments. There are a lot of approaches to statutory construction at issue in this case – and they all point toward the same result – but I think the easiest way to see this is to look at 42 U.S.C § 1981, one of the key provisions of the Civil Rights Act of 1866 (reenacted in 1870): “That all persons within the jurisdiction of the United States shall have the same right . . . . to make and enforce contracts . . . as is enjoyed by white citizens.”

There is no question that this provision means the same rights as are currently enjoyed by white citizens. This formulation would have been familiar to Congress in 1945, and section 1981 (and its companion section 1982) are the only other places in the U.S. Code that the “same . . . as is enjoyed” formulation appears. The same language has to be interpreted the same way – and thus the IFC and other IOs should receive restrictive immunity, which is what foreign states now receive under the Foreign Sovereign Immunities Act (FSIA) of 1976, and previously received pursuant to State Department policy announced in 1952.

Against this backdrop, the IFC’s counsel – former U.S. Solicitor General Don Verrilli, Jr. – made a number of policy arguments. Most of his arguments were based on misconceptions. But the first misconception came not from the IFC but from the Court, in the form of a question by Justice Breyer.

  1. The purpose of the IOIA was “to get these organizations to locate here”

Justice Breyer was very concerned about whether applying the restrictive theory of immunity would undermine the original purpose of the IOIA – which he identified as follows:  “The purpose of the statute, going back to 1945 and the U.N. and everything, was to get these organizations to locate here.” This is, at most, half right.

First, Congress’s major purpose in enacting the IOIA was clear on the face of the legislative history: “The basic purpose of this title is to confer upon international organizations, and officers and employees thereof, privileges and immunities of a governmental nature.” That was Congress’ overriding purpose, and it should be honored.

Second, it is true that a secondary purpose was to help prepare the ground to allow the United Nations to locate in the United States – but there is no indication that it was intended, as a general measure, to encourage IOs to locate in the United States on an ongoing basis. The Senate Report on the IOIA indicates that it was intended “primarily to meet the requirements” of IOs generally; it named several, only some of which were headquartered in the United States. The law would, however, “also be available to meet the needs of the United Nations Organization, the headquarters of which will in all probability be established in the United States.” Debates in Congress indicate that part of the need to pass the law before the end of 1945 was to meet the needs of the UN as the headquarters issue was resolved.

But helping to resolve the UN headquarters location is very different from generally trying to encourage IOs to locate in the U.S. There is no indication in the legislative history that the U.S. needed to provide extensive immunities to encourage IOs to locate here; instead the law was intended to give IOs appropriate immunities of a governmental nature.

The distinction matters, because there is no danger that any interpretation of the IOIA would threaten any purpose related to the UN. As it happened, the IOIA was not sufficient to satisfy the UN. First a Headquarters Agreement was separately negotiated between the U.S. and the UN. At the time, the U.S. had not adopted the Convention on the Privileges and Immunities of the United Nations (CPIUN), but some of its immunities were incorporated into the Headquarters Agreement. And then the U.S. did ratify CPIUN, giving broad immunity from suit. The IOIA is almost irrelevant to the UN.

In fact, most international organizations established after the IOIA do not have headquarters in the U.S.; the ones that do are either financial institutions that the U.S. dominates (like the IMF and the World Bank Group), organizations founded by the U.S. and only one or two other nations (usually Canada and/or Mexico), or regional inter-American organizations like the Organization of American States (which in any event also negotiated its own separate Headquarters Agreement with the United States). Indeed, other than the UN, no major global organization outside the World Bank Group has sited its headquarters in the U.S. since the enactment of the IOIA; no organization has been relying on the IOIA’s immunity regime for its headquarters decisions.

  1. There was a fixed rule of “virtually absolute immunity”

The IFC argued that, in 1945, the immunities of foreign governments had a “settled meaning of virtually absolute immunity,” which IOs should continue to receive today. This is accurate to a point – the Supreme Court has said that states at the time enjoyed “virtually absolute immunity,” but that this was not a common-law rule; instead it was the consequence of deference to the immunity determinations of the State Department.

So “virtually absolute” immunity could mean no immunity if the State Department chose not to extend immunity in a particular case. And this deference to the political branches means that the 1945-era approach could not be considered a fixed rule, as the IFC argued.

  1. Treaties required the U.S. to grant “virtually absolute immunity”

Next, the IFC argued that “Congress enacted the IOIA . . . to fulfill treaty obligations that committed us to provide virtually absolute immunity.” And later, that “what led to the enactment of the IOIA” was the need “to get these organizations up and going and give them the immunity we promised them.” This is simply false.

Congress enacted the IOIA against the backdrop of three recently-created IOs: the UN, the IMF, and the International Bank for Reconstruction and Development (IBRD, known as the World Bank – though today’s World Bank Group also encompasses four subsequently established institutions, including the IFC). Not one of their founding agreements commits the U.S. to provide “virtually absolute immunity.”

The UN Charter commits the U.S. to grant the UN the “privileges and immunities as are necessary for the fulfilment of its purposes.” No one has suggested why applying the restrictive theory would have frustrated the purposes of the UN, especially in 1945. The UN’s framers could have put absolute immunity into the Charter; they did not.

The IMF’s Articles of Agreement do provide absolute immunity from suit (not “virtually absolute immunity,” a concept that simply does not exist in international law). But that immunity had already been codified into U.S. law, in 22 U.S.C. § 286h; the IOIA was unnecessary for this purpose. As for the IBRD, its Articles of Agreement decidedly do not provide absolute immunity, and arguably do not provide any immunity at all (except for suits from member states).

Thus the U.S. was under no treaty obligations in 1945 to provide “virtually absolute immunity” to any IO.

  1. The UN Charter requires absolute immunity

The IFC then suggested that while the original UN Charter only required “necessary immunities,” the negotiation of CPIUN in 1946 elaborated that “the U.N. should get virtually absolute immunity” – and that not granting such immunity to the UN would put the U.S. “in violation of the commitment we made in the U.N. charter.”

This is wrong in at least two ways.

First, CPIUN again does not provide “virtually absolute immunity”; it provides unqualified, absolute immunity from suit. Again, no treaty reflects the standard that the IFC urges.

Second, and more importantly, the US was not bound by CPIUN until it ratified it. While the purpose of CPIUN was to elaborate on the functional immunity in the UN Charter, not all states agreed with that elaboration. Even today, while there are 193 members of the UN, only 162 have adopted CPIUN. And that adoption was not immediate – 36 countries adopted CPIUN in the 1940s, and adoption continued gradually throughout the 1950s, 1960s, and up through today (the most recent being Saudi Arabia and East Timor in 2015).

The U.S. did not ratify CPIUN until 1970, and until then it was not bound by its interpretation of the UN Charter. It would only have been in violation if the U.S. approach to immunity frustrated the purposes of the UN, and there is no evidence of that.

Indeed, even today, some countries do not accord the UN absolute immunity. As August Reinisch, a leading expert on the subject, notes, “some national courts have tried to limit the Organization’s scope of immunity along the initially envisaged ‘functional’ immunity. In practice, this has also sometimes led to the application of restrictive State immunity principles denying immunity for ‘commercial” activities.’”

  1. The IOIA was enacted to give international organizations “functional” immunity

The IFC argued that – contrary to the language of the IOIA – immunity of IOs should not be the same as immunity of states because “immunity is granted for different reasons. The reason you give an international organization immunity is a functional reason, not a status reason. It’s not about according the appropriate respect to the sovereigns, because international organizations aren’t sovereigns.” But that’s not what Congress thought in 1945.

The Senate Report on the IOIA is replete with indications that Congress intended to do just what the IFC argues against – to tie the immunity of IOs to sovereign immunity as a matter of status. The Senate Report indicates that the IOIA would grant IOs “immunities of a governmental nature,” and that the immunities granted “are those accorded foreign governments under similar circumstances.” Proponents of the IOIA indicated that IOs that are “made up of a number of foreign governments . . . should enjoy the same status as” a foreign embassy.

While Congress’ clear intent was to link IO immunity with foreign sovereign immunity as a matter of status, this still does not disturb any need for functional immunity – as we see next.

  1. Restrictive immunity would impair the functions of international organizations

The IFC suggested throughout that the “restrictive” approach to immunity from suit would conflict with IOs’ needs to function. But it is far from clear why that would be so, other than a generalized argument that subjecting anyone to the possibility of lawsuits makes it impossible for them to function, which is a rejection of much of the U.S. legal system.

The two major categories of exceptions to immunity, under the restrictive theory, are torts within the United States – auto accidents, slip-and-falls, other kinds of negligence in the U.S. – and commercial activities within the United States. The IFC’s argument did not even address the first category. As to the second, it’s not clear why, if every other commercial lender can manage to operate while being subject to suit, the IFC cannot.

Indeed, the only reason for that would be if the IFC’s commercial activities risk harming people in a way that commercial banks would not be willing to do. And if that’s what’s going on, it’s something that needs to be stopped, not protected. Immunity is supposed to protect an IO’s purposes, and the IFC’s purpose is to promote development and end poverty – not harm vulnerable communities. If we think, as a matter of policy, that legal liability impairs sustainable economic development, why don’t we immunize all corporations for all of their actions in developing countries? (In fairness, some might argue for that – but I hope there is no serious debate here.)

  1. The IFC is being sued because its borrower failed to meet its contractual obligations

While the question at issue in the Supreme Court goes far beyond this case, the next misconception peddled by the IFC is about this case in particular, which relates to harms from a power plant project in India. The IFC argued that it is being sued because it tried to put in robust environmental standards into its contract, and the project developer didn’t follow them: “The entity that we loan this money to didn’t live up to the standards and it’s our fault. And so we’re being sued here.”

That is not true at all. The IFC is being sued for its own negligence. The IFC expressly allowed the project developer to deviate from its original plans, which led directly to massive impacts on the local population.

Think of the classic hypothetical where a man walks into a gun dealer and says “I need to buy a gun because I plan to kill my wife.” Now while it’s generally legal to sell guns, you’re abetting a crime if you sell a gun to someone who you know is going to use it to hurt someone. So suppose the gun dealer simply says, “well, first I need you to sign a contract saying you’re not going to hurt anyone with this gun.” The man signs the contract, buys the gun and kills his wife. The gun dealer can make exactly the same argument as the IFC, characterizing the case against it as “the man that we sold this gun to didn’t live up to the standards and it’s our fault. And so we’re being sued here.”

The point is that while including environmental and social standards in a contract is a good thing, it doesn’t get you off the hook if you still know that you’re enabling someone to cause injury. The IFC is not being sued because of its contract; it’s being sued in spite of its contract. The absence of environmental and social standards in the IFC’s contract would not absolve it of liability here. The essential facts – that the IFC knew the project was going to cause harm, specifically approved many of the features of it that do so, and went forward with it anyway – would remain the same.

  1. The IFC takes remedial measures in response to identified problems

Perhaps the argument most divorced from reality was the IFC’s contention that they have an effective internal policing mechanism: “We’ve also got a robust internal accountability mechanism, where if people think something has gone wrong on one of our projects, they can come to us and they can say –they can say, look, there’s a problem here. And they — and we investigate. We take internal remedial measures if we find there’s a problem.”

The mechanism at issue is the Compliance Advisor Ombudsman (CAO). And the CAO does great work. The problem is with the last part of this assertion: that the IFC takes remedial measures if the CAO identifies problems.

If the IFC had done so here, there would never have been a lawsuit. In fact, although the CAO identified numerous problems with the IFC’s behavior on this project, the IFC’s response has been lackluster at best. The CAO’s compliance audit was issued in October 2013 – over five years ago. But the CAO still considers the case to be open, in the “compliance” stage, where the CAO is monitoring IFC’s response to its recommendations. The CAO issued its second monitoring report in February 2017; its bottom line conclusion was that it was “concerned that the actions reported by IFC are not sufficient to address the findings of the audit.”

  1. Absolute immunity for IOs “has been the law for a very long time” and has “worked well”

The IFC closed its argument by suggesting that the absolute immunity rule “this has been the law for a very long time. There is no evidence that it has done anything other than work well.” Neither piece of that is true.

At most, the absolute immunity interpretation has been relied on by international organizations for the past 20 years, since the D.C. Circuit decided Atkinson v. Inter-American Development Bank in 1998. Before that, there was no indication that international organizations would get absolute immunity in U.S. courts.

During the initial years of the IOIA, the State Department treated its immunity not as a fixed rule of absolute immunity, but as a rule of deference to the State Department – just like the rules for foreign states. Thus, just like it did with foreign states, the State Department had a practice of filing “suggestions of immunity” for international organizations; the U.S. confirmed this in its amicus brief. But the U.S. stopped doing so, and in 1977 the State Department indicated that it would be inappropriate to do so after the 1976 passage of the FSIA, precisely because the IOIA “links the two types of immunities.” Again in 1978, the U.S. submitted an amicus brief in the D.C. Circuit arguing that the FSIA’s restrictive approach applies to IOs. The Executive Branch would go on to repeat this interpretation multiple times over the next four decades.

So at least from 1978 to 1998 – a 20-year span – no one had any reason to believe that international organizations had absolute immunity. And during that period, there was no indication that applying the restrictive approach would have any negative consequences.

All this proves is that suits against international organizations, regardless of what degree of immunity is applied, are rare. There was no flood of litigation after the FSIA was enacted and the State Department said it applied to international organizations; there will be no flood of litigation now. There may be a handful of suits – and those suits will encourage more careful behavior on the part of international organizations.

And has immunity worked well? The facts of this case demonstrate that it has not. Immunity distorts market behavior; it creates classic moral hazard problems, where actors take unwarranted risks because they know they cannot be sued. The irony is that if the IFC knew its immunity was not absolute, there would have been no lawsuit here – because the IFC never would have made the decisions that caused the plaintiffs’ injuries.


Another Discovery about Corfield v. Coryell

In my ongoing research on Bushrod Washington and Corfield, I have come across another Easter Egg. In a letter from Justice Washington to Justice Story dated June 8, 1825, Washington wrote:

“I send you a report of the case of Corfield v. Coryell as you perused the opinion at large during the last session of the Supreme Court.”

What I need to figure out is whether this means Washington showed Story a draft opinion of Corfield. I think that the answer is yes, but I want to check the schedule of the Supreme Court session in question along with the circuit court. If this line does refer to a draft opinion, that raises several wonderful questions. To what extent did the Justices share drafts of circuit opinions with each other? Does this mean that Washington wrote Corfield during a Supreme Court Term? Did Justice Story or another other Justice comment on the opinion?