Friday, July 13, 2018

Case of the Day: Ogawa v. Kang, 2018 U.S. Dist. LEXIS 88561 (D. Utah May 24, 2018)


Plaintiff and defendant were formerly married, with two children. The ex-husband plaintiff is a Japanese national, the ex-wife defendant a South Korean national. While they were married, they lived in Japan until 2012. With the divorce imminent, the ex-wife moved to the United States with the children. The formal divorce was finalized in March 2013. Under the divorce agreement, the ex-husband was to briefly have custody over the children until the end of March 2017, then hand over the children; however, the ex-husband did not do so. In October 2017, the children traveled to South Korea, where the ex-wife met the children and took them to the United States. Plaintiff filed the Hague Child Abduction application in Japan, which reached the District of Utah in which the defendant lived.

The court rejected the application. The court first noted the defendant had the full custodial rights under the divorce agreement, and the plaintiff's right to have some custodial capacity did not include deciding where the children might live. The court also interviewed the children (who were 12 years old,) who expressed the desire to stay with their mother. 


No matter how many times I read international family law cases--my pet favorite--it will never stop sounding a bit crazy from the perspective of a commercial litigator. This case essentially involves self-help enforcement of a contract and a potential overriding of the contractual terms based on the preferences of 12-year-olds who barely speak any English. I do see the reasons why all of this may be necessary, but the differences are nonetheless quite stark.

Monday, July 9, 2018

Case of the Day: Kasolas v. Yau (In re Fox Ortega Enters.), 2018 Bankr. LEXIS 1415 (Bankr. N.D. Cal. May 11, 2018)


Plaintiff is the trustee overseeing the bankruptcy of Premier Cru, a California business that ostensibly procured rare wines at a discount but in reality operated essentially as a Ponzi scheme. Defendant is a former customer in Hong Kong who made online orders from Premier Cru, and is alleged to have received a fraudulent transfer from the debtor's estate. The defendant sought to dismiss based on lack of personal jurisdiction.

The court denied the motion. The court found that the transaction occurred in California with a Californian company, and the fact that the defendant was never physically present in California was of no import. The court further found that "[t]here is a strong federal interest in hearing bankruptcy matters in the bankruptcy court where the bankruptcy case was filed[,]" especially considering "[t]here are 100 such cases with defendants residing all over the United States and the world."


In the opinion, the court declared: "This is simply not a close case.  . . .  The fact that there is a dearth of case law concerning federal courts exercising personal jurisdiction over non-resident defendants when those defendants were customers who made their purchases online is not vindication for Defendant's argument as he seems to believe." While I believe the court's decision in this case is correct, I am not sure about this strong pronouncement. Probably more correct to say in the peculiar context of bankruptcy (which may be one of the few occasions in which a seller sues a buyer, unlike the much more common scenario of a buyer suing a seller,) simply placing order online is enough to create personal jurisdiction.

Thursday, July 5, 2018

Case of the Day: Ferguson v. Wallace-Ferguson, 2018 ND 122 (N.D. May 10, 2018)


Ex-husband and ex-wife were both U.S. military service members and obtained divorce while they were stationed in Germany. Ex-husband was later re-assigned to North Dakota, ex-wife to Texas. The ex-wife registered the German divorce decree with the North Dakota to obtain child support. Subsequently, the ex-husband was re-assigned to South Korea, and claimed the North Dakotan court no longer had jurisdiction to modify the support order.

The Supreme Court of North Dakota construed the Uniform Interstate Family Support Act, and determined the North Dakotan court maintained jurisdiction. Although the court noted that virtually all courts interpreted the UIFSA to divest jurisdiction once all parties moved out of the state, the court found an exception when one party moves out of the country.


This may seem like a run-of-the-mill family law decision, but to a civil procedure nerd about transnational litigation, it is the craziest thing. By way of a statute, the court: (1) issued a provisional order (since child support orders are not a final judgment) that (2) stays effective no matter where the defendant lives, even if the defendant lived in a different country and outside of the court's territorial jurisdiction, because; (3) the defendant was present in the jurisdiction momentarily. There is absolutely no area in the U.S. law that does something like this other than family law. Just imagine how much easier the personal jurisdiction jurisprudence would be if all cases were sorted out like this.

Friday, June 29, 2018

Issue Analysis: Trump v. Hawaii, and the Failed Promise of Animus Jurisprudence

The "Travel Ban case," whose formal name is Trump v. Hawaii, 585 U.S. ___ (2018), is a disaster in all relevant respects: practically, intellectually, jurisprudentially. Even limiting the scope of examination to the law, Hawaii's failures are multiple. For one, even as the case purports to disavow Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court case that approved the internment of Japanese Americans, Hawaii employs the exact same logic as Korematsu. As Professor Joseph Fishkin explained:
The problem with Korematsu was not that it slipped and failed to cloak its racism in the garb of a nominally facially neutral order, focused on nations rather than ethnicity. The problem was the underlying xenophobia of the policy itself, and of the proposition that everyone from Japan, and their children, presented a military threat to the United States. Framing the policy in facially neutral terms would not have changed this; nor, similarly, would the Japanese internment policy be less worthy of repudiation today if the government had belatedly added Germany and Italy to the list of nations from which people would be interned, in the same way that the Trump Administration belatedly added Venezuela and North Korea (and set up a “waiver” process that is apparently something of a sham) as a way of dressing up the policy as something other than what it is in a bid to survive judicial scrutiny.
Why was Korematsu Wrong? [Balkinization] (emphasis mine)

I want to focus on a different type of jurisprudential failure about which I have not seen much discussion: the failure of "animus" jurisprudence that is so strongly associated with Justice Anthony Kennedy. Just as much as Hawaii contradicts the Supreme Court's ostensible disavowal of Korematsu, Hawaii also contradicts Romer v. Evans, 517 U.S. 620 (1996), the high point of Justice Kennedy's animus jurisprudence.

Those who argue in favor of Hawaii usually note two points: (1) the president's plenary power over immigration, which is an expression of sovereignty, and; (2) the travel ban is justified under the rational basis analysis. But Romer contradicts both of these points. In Romer, the majority led by Justice Kennedy held that a state constitutional amendment for Colorado that deprived protected status for gays was found unconstitutional, because animus, or "bare . . . desire to harm an unpopular political group," 517 U.S. at 634, cannot serve as a rational basis for any law. As long as there is impermissible animus, the travel ban should have been unconstitutional. Romer says presence of animus results in the failure in the rational basis test--enough to defeat the clearest expression of sovereignty in the democratic system, namely a constitutional amendment for which the people directly voted to adopt.

How much animus is enough to invalidate a law? According to Justice Kennedy in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), only a little bit!  In Masterpiece Cakeshop,  this statement by one of the commissioners in the Colorado Civil Rights Commission was found to be sufficient to display impermissible animus:
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
When I saw this result from Masterpiece Cakeshop, I was quite happy--because I thought there was no way for Justice Kennedy to not find impermissible animus in the travel ban case. If the statement above displays impermissible animus, how can the court possibly look away the very obvious animus that President Donald Trump displayed over and over again through his statements, before and after winning the presidency? Quick examples from Hawaii's majority opinion include: "Islam hates us"; United States was "having problems with Muslims coming into the country"; retweets of multiple anti-Muslim propaganda pieces. Surely, pushing anti-Muslim propaganda pieces while implementing the travel ban must be a display of animus, right?

As it turned out, I overestimated Justice Kennedy's intellectual consistency. The majority opinion attempted to deflect the animus jurisprudence by recounting the travel ban's supposed national security justifications (in Part IV-D.) If Romer means anything, if Masterpiece Cakeshop means anything, this attempt is a failure. Trump's animus toward Muslims is clear as day; equally clear is the speciousness of the national security justification behind the travel ban. The dissent by Justice Sonia Sotomayor flags this very point, citing Romer: "But even under rational-basis review, the Proclamation must fall. That is so because the Proclamation is “‘divorced from any factual context from which we could discern a relationship to legitimate state interests,’ and ‘its sheer breadth [is] so discontinuous with the reasons offered for it’” that the policy is “‘inexplicable by anything but animus.’” Ante [majority opinion], at 33 (quoting Romer v. Evans, 517 U. S. 620, 632, 635 (1996))." Justice Stephen Breyer's dissent also clinically exposes the pretextual nature of the national security justification by focusing on how the waiver process, which is supposed to be a safety valve against religious animus, is in fact a sham.

I think Kennedy himself realizes this, because his concurrence opens with a citation to Romer: "There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is 'inexplicable by anything but animus,' Romer v. Evans , 517 U.S. 620, 632 (1996), which in this case would be animosity to a religion." But Kennedy then simply rolls over, citing "in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs". Sure, the Executive accords deference from the Judiciary--but does Kennedy really mean to say the Executive deserves greater deference than a constitutional amendment voted directly by the people, as was the case in Romer?

The unkindest assessment for Justice Kennedy has been that he was a preening moralist and awful judge; that he would grandstand over lofty concepts like "liberty" and "dignity" and thunders against "animus," but has no interest in turning those concepts into a rigorous legal standard to be applied consistently. This assessment is bipartisan: Ilya Shapiro of the Cato Institution said Kennedy has "harmed the rule of law"; Professors Kent Greenfield and Adam Winkler said "[Kennedy's] opinions often hedged, refusing to establish strong rules to protect gays and lesbians going forward. He spent more time in his key opinions discussing the ephemeral than the doctrinal." I was a legal academic shortly after the Supreme Court decided Obergefell v. Hodges, 576 U.S. ____ (2015), and I knew no legal scholar, not even the most liberal LGBT ones, who liked the way Kennedy arrived at the conclusion. And of course, the conservative reaction to Obergefell can be summed up in Justice Antonin Scalia's footnote in his dissenting opinion: "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

By signing onto Hawaii and immediately retiring, Justice Kennedy solidified that assessment. Even apart from my desired outcome in the travel ban case, I had always thought the animus jurisprudence was a very positive thing, a major contribution that Justice Kennedy has made in the U.S. Constitutional jurisprudence. I also found Kennedy's aspirational writing style annoying, but thought the style served a function of inspiring the public about the Constitution's grand aims. With more time and refinement, I thought, the animus jurisprudence could prove to be a valuable tool in a world in which the government force is often deployed against disfavored groups with a translucent veneer of pretext. With Kennedy's retirement, that possibility is no more. Hawaii made a mockery of the animus jurisprudence, which is now reduced to an arbitrary doctrine that protects a Christian baker but not Muslim travelers.

As can be seen in Romer, the animus jurisprudence did much to advance the LGBT rights, but it rarely reached beyond that one particular topic that defined much of U.S. politics for the past generation. By retiring, Kennedy ensured there will be no further development of the animus jurisprudence, because his successor (no matter how it may be) is certain to disavow it. Kennedy's vote in Hawaii will serve as a clear reminder that the animus jurisprudence has all the persuasive force of the jurisprudence behind Bush v. Gore, 531 U.S. 98 (2000), a cynical, result-driven legal reasoning to which no one will revisit after the desired result was achieved.

Tuesday, June 26, 2018

Case of the Day: Choi v. Tower Research Capital LLC, 2018 U.S. App. LEXIS 12122 (2d Cir. Mar. 29, 2018)


Plaintiffs are Korean citizens who traded on futures on Korea Exchange (KRX), and claimed damages arising from the alleged "spoofing" scheme conducted in New York. The KRX futures are listed the electronic platform of the CME Group based in Illinois, but the plaintiffs entered their trades in Korea. The lower court dismissed, holding the Commodities Exchange Act (CEA) did not apply extraterritorially.

The Second Circuit reversed. Noting the trades were "matched" in the United States, the court found a contract was formed in the United States. The court found it was irrelevant that the trades were "settled and cleared" in Korea, since the contract had already formed in the United States at the moment of the matching. The ability to fix any error in the trade in Korea did not make the contract revocable. The court also found sufficient connection, however indirect, existed between the plaintiffs and the defendant to sustain the New York state law claim on unjust enrichment.


With the financial market becoming ever more sophisticated, the extraterritorial application of the CEA is going to be the next big question. Here, the court cuts against the prevailing trend of pulling back from enforcement beyond borders.

Monday, June 25, 2018

Media Apperance: "World Cup 2018: South Korea Wins at Democracy" on the New York Review of Books

I've written for some pretty cool places. My byline has appeared on the Wall Street Journal (my first serious writing gig,) CNN, the Washington Post, the Financial Times, Foreign Policy, the Atlantic, etc. But with apologies to all of the foregoing, I have a few "bucket list" publications on which I really wanted to appear. And I just crossed one off, with the New York Review of Books!
Under the military dictatorship that lasted until 1987, a public gathering in South Korea was a grim, joyless affair: either a phony mass convocation drummed up by the government, or a pro-democracy protest featuring Molotov cocktails and tear gas. A law prohibiting Koreans from gathering after sundown stayed on the books until 2009. But in 2002, millions of Team Korea supporters—calling themselves the Red Devils—gathered at Seoul’s City Hall Plaza on game nights. The chanting and singing supporters became a spectacle of their own. As the Taegeuk Warriors took down one powerhouse after another, the mood of the crowd, made up mostly of Koreans in their twenties and thirties, shifted. They tuned out the grousing of Italy and Spain fans who pointed to South Korea’s home-field advantage and some dodgy refereeing. Instead, the young Koreans fed off the new-found confidence of their team: we are no longer underdogs; we can win on our own merits.
World Cup 2018: South Korea Wins at Democracy [New York Review of Books]

My piece is one of the NYRB special series on the World Cup, highlighting what soccer means to each country appearing in the games. Every essay is incredible, and I feel honored to be a part of this lineup.

Wednesday, June 20, 2018

Case of the Day: Acetris Health LLC v. United States, 2018 U.S. Claims LEXIS 474 (Ct. Fed. Claims May 8, 2018)


Plaintiff is a medicine supplier for VA Hospitals, subject to "Buy American" statute that requires the U.S. government facilities to procure U.S.-made products. Because the medicine that the plaintiff supplied is allegedly sourced from India, the U.S. Customs and Border Protection determined the medicine did not comply with the Buy American regulations, effectively terminating the plaintiff's contract with the Department of Veterans' Affairs. Plaintiff then sued the United States.

The court denied the motion to dismiss by the United States. The court found that although the CBP made the initial determination as to the country's origin (which would put the action under the Court of International Trade,) the fact that DVA also exercised judgment gave jurisdiction to the Court of Federal Claims. The court also found 28 U.S.C. s. 1500, which divests the Court of Federal Claims of jurisdiction when a related action is pending in another court, did not bar the plaintiff's claims although there is a separate action pending before the CIT challenging the CBP determination.


Whoa. I am not familiar with the operation of 28 U.S.C. s. 1500, but that appears to be an aggressive ruling by the court.