04 April 2005

Freedom to Choose

One of the more intractable conflicts in modern law concerns the three-level conflict in libel. The most obvious of these questions is where a libel suit may be heard: Where the speaker is; where the injured party is; where the speech is heard, whether purposefully or not; in some other "convenient" location. Consider, for example, a book that criticizes a Saudi sheik as a funder of terrorism. The book is formally published only in the US, but a few copies (as an aside, fewer than would have triggered the "manufacturing clause" problems under the US's 1909 Copyright Act) are imported into England. The book's author is a US citizen who resides in the US. So, does it really surprise anyone that

Though Mr. Bin Mahfouz has yet to retain counsel for the case Ms. Ehrenfeld has filed, Michael Gurdak, a lawyer at Jones Day, which represented Mr. Bin Mahfouz in a previous case, disputed the suggestion that the British legal system was being exploited. "Given that Mr. Bin Mahfouz has no contacts in the United States and substantial contacts in the U.K., there is no basis to characterize much less criticize Mr. Bin Mahfouz's decision to protect his reputation there as forum shopping," he wrote in an e-mail message. "To any objective observer, it would be Ms. Ehrenfeld who has been misusing the courts."

Sarah Ivry, "Seeking U.S. Turf for a Free-Speech Fight" (04 Apr 2005). (Disclosure: I'll freely admit to bias concerning Jones Day's seeming institutional prediliction for manipulating fora and choice of law, based on substantial experience litigating against the firm.)

Note, though, that this only concerns the forum. The second level of conflict is whose law will be applied. Just because a lawsuit is being heard in a court in jurisdiction X does not mean that jurisdiction X's law applies. (Well, in practice, it almost always does; the cases one reads in the casebooks are reported decisions precisely because they're so exceptional.) So, even if the lawsuit were "properly" heard only in the US—under existing choice-of-law and choice-of-forum rules, that's far from a given—there remains the question of whether US or UK law applies. Or, perhaps, even Saudi law, depending on exactly what is stated in the book (I haven't read it). And, lurking behind this issue, there's the question of whether US constitutional law would override another nation's domestic libel law if the matter is heard in US courts. Although thus far that's a pretty clear "yes," the circumstances described in Ivry's article constitute the unconsidered case—and the hard case.

The third level of conflict is, in many ways, the most interesting. What happens to a libel defendant who suffers an adverse judgment in a foreign jurisdiction? Now we're talking about comity: The respect of one court for another court's judgment. Here's where things really get interesting… because, in this particular fact pattern, there is a possibility that the "correct" (or at least a possible) "court system" is that in Saudi Arabia. Islamic law. Which, in these kinds of circumstances, is highly unlikely to respect a judgment from a non-Islamic court; so should a non-Islamic court respect a judgment from an Islamic court, in some kind of judicial tit-for-tat? Are the fundamental precepts so different that to each, the other's "judgment" isn't a "judgment"?

For civil procedure nerds, this should bring back memories of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). To say that this is circular logic is probably an understatement. In conflict of laws, we also consider the doctrine of renvoi (whether a court with questioned jurisdiction or choice of law will accept that the "foreign" court would have given jurisdiction or choice of law back). And then, we have the questions of procedural fairness, propriety, etc. implied by the now-largely-discredited "outcome-determinative" test, see Guaranty Trust Co. of NY v. York, 326 U.S. 99 (1945)—which, although seldom cited anymore because revisions to the federal rules and to corresponding state rules has largely obviated the perceived need for what remains of the doctrine, points to what remains a live issue in international matters.

Too many in this country are fond of pointing to the substantial constitutional protections for authors offered under US libel law, particularly in a First Amendment context. This particular matter points to a serious problem; and it's a problem relevant to every author signing a publishing contract, because the warranty and indemnification clause… well, you'll just have to come and hear me pontificate on this in Chicago at the end of the month.