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Tilting at Windmills

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June 18, 2008
By: Kevin Drum

TORT REFORM ON STEROIDS....Via Josh, I learn that Blackwater has filed a motion in a lawsuit claiming that since the mishap they're being sued for (a plane crash) happened in Afghanistan, the lawsuit should be adjudicated via sharia law, not U.S. law. That's ironic enough on its own merits, but the explanation is even better:

In April, Blackwater asked a federal judge in Florida to apply Islamic law, commonly known as Shari'a, to the case. If the judge agreed, the lawsuit would be dismissed. Shari'a law does not hold a company responsible for the actions of employees performed within the course of their work.

Is it really true that corporations aren't responsible for the negligence of their employees under sharia law? If it is, I think we can shortly expect mass conversions to Islam among American CEOs, followed by a plank in the Republican Party platform demanding that sharia be adopted across the board in federal courts. This is a tort reformer's wet dream.

Kevin Drum 7:46 PM Permalink | Trackbacks | Comments (44)

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Someone smarter than me pointed out that this is especially rich coming from the conservative industrial complex, since it has been a standard wingnut accusation that if Democrats are elected, those cursed hippies will try to enact Sharia law in the United States.

It's almost supernatural how often conservative talking points bite them in the ass later.

Posted by: BombIranForChrist on June 18, 2008 at 7:59 PM | PERMALINK

The Charlotte News & Observer seem to have deleted its story. No retraction / correction either, though.

Posted by: Jim D on June 18, 2008 at 8:07 PM | PERMALINK

Halliburton is now HQ'd in Dubai, IIRC.

Which of course is a coincidence.

Posted by: Davis X. Machina on June 18, 2008 at 8:25 PM | PERMALINK

On a much drier note, this is nothing new; the only difference is that Blackwater was either too inexperienced or too duplicitous to get its employees to sign an agreement that expressly consented to application of shari'a law. If it had it might be able to enforce it. See Spradlin v. Lear Siegler Management Services, 926 F.2d 865 (9th Cir. 1991) (employee bound by clause that provided that "This employment agreement shall be governed by the laws of the Kingdom of Saudi Arabia. The courts of Saudi Arabia shall have sole jurisdiction over any disputes arising out of this Employment Agreement.")


ere is a reported case from over a decade ago in which the employer got employees to sign a contract agreeing that Saudi Arabian law would apply to their contract claims.

Posted by: Henry on June 18, 2008 at 8:30 PM | PERMALINK

The older I get the more commonly I find myself getting the wrong mental image when folks use metaphors.

"Tort reformer's wet dream"
"talking points bite them in the ass"

Anyway, I've got to go wash my brain with soap and water. Maybe I'll go read something with metaphors that aren't about the nether regions of conservatives.

Posted by: asdf on June 18, 2008 at 8:33 PM | PERMALINK

Fine. We have numerous documented examples of fraud and theft by Blackwater. Exactly when will Mr. Prince be self surrendering to have his fucking hands chopped off??

Posted by: bmaz on June 18, 2008 at 8:37 PM | PERMALINK

I can just see Newt or Limbaugh saying "I divorce you" three times.

Posted by: Jet on June 18, 2008 at 8:48 PM | PERMALINK

I may have the details wrong on this, but I believe that U.S. law (which equates corporations with individuals) is one of the only in the World that allow people to sue corporations. Individuals, yes, but not corporations. This came to my intention in regards to a horrific German high speed rail accident. People within the company were obviously negligent, but mostly lower paid workers. Suing them would have provided no relief to the hundreds that were injured. The corporation itself could not be sued. The leadership could be sued individually, but you would have to prove that they were directly responsible for the conditions that resulted in the accident. So basically, no one got a sent out of the corporation or anyone attached to it.

I have a feeling that this situation in Germany is not unique.

Posted by: Christopher on June 18, 2008 at 8:51 PM | PERMALINK

Privatize the gains and hit the taxpayers with the losses. This is standard operating practice for more than a decade. Could Kevin please learn to move beyond his surprise that conservatives and corporate America are, in fact, evil evil-doers?

Posted by: anon on June 18, 2008 at 8:58 PM | PERMALINK

The story moved on the website. Here's the new link: http://www.newsobserver.com/front/story/1112843.html

Posted by: Mahousu on June 18, 2008 at 9:21 PM | PERMALINK

Kevin (and others):

The motion referred to by the original news story is located here:

http://www.4shared.com/file/51875165/f13210d4/Motion_to_Dismiss_McMahon_v_Presidential_Airways_6_05CV1002-ORL-28JGG_May_1_2008.html

I downloaded it from PACER and put it on my file sharing account.

DEFENDANTS' 12(b)(6) MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW, McMahon v. Presidential Airways, Inc., No. 6:05CV1002-ORL-28JGG (M.D.Fla.-Orlando Division, removed from state court 7/06/2005)(motion filed April 30, 2008).

Please see pages 4 et seq., particularly on page 11 where the Defendant (a subsidiary of Blackwater) states that:

"Afghanistan has a great interest in ensuring that conduct within its borders complies with
Islamic law such that negligent and dangerous actions are deterred by the threat of full
responsibility for any consequences."

Posted by: Jim D on June 18, 2008 at 9:24 PM | PERMALINK

"Shari'a law does not hold a company responsible for the actions of employees performed within the course of their work."

For the love of god, Kevin, please tell us more about this.

It is well known, of course, how the bible tells us what special investment vehicles are and are not legitimate, and what sorts of financial derivatives are and are not approved in the eyes of god, but my understanding of the Koran as it applies to companies is that is limits its advice to discussing Coasian matters (what should be brought into the firm, vs what should be contracted on the open market) and when videoconferencing is an acceptable substitute for employees coming into the office.

How the fsck does one get from a book written in the 7th century to a definitive pronouncement on the esoteric rights and responsibilities of companies? How is this even part of Sharia law? Wouldn't any cleric who is not on the take simply have thrown the question out of court and told the participants "Don't be morons, this is a civil matter"?

Posted by: Maynard Handley on June 18, 2008 at 9:26 PM | PERMALINK

US Tort law used to operate with the fellow servant rule that amounted to about the same: employee could only sue the person whose actions caused the harms (fellow servant). Suing employer is only about 100 years old, and worker's comp quickly followed.

Posted by: paule on June 18, 2008 at 9:33 PM | PERMALINK

Sharia law doesn't recognize corporations. The individuals would be personally responsible -- including the executives.

Posted by: freelunch on June 18, 2008 at 9:34 PM | PERMALINK

Locus lex delicti

Posted by: Conflict of Laws on June 18, 2008 at 9:46 PM | PERMALINK

I believe paulie and freelunch are correct.

Moreover, the real scandal hurting American workers are decisions like the Texas Supreme Court's decision in Entergy v. Summers (which I think is now on rehearing).

Posted by: Jim D on June 18, 2008 at 9:48 PM | PERMALINK

link

---


What is the ethical difference between Roosevelt's Public Health Service denying the men involved in the Tuskegee Study the possibility of giving informed consent to be part of a study in 1932 and Michelle Obama's denial of the possibility for girls and their parents to give informed consent to be part of a clinical trial today?

I mean, aside from the fact that there was no actual cure for syphilis available in 1932 when Roosevelt allowed the Tuskegee Study to be publicly financed. I suppose there is some slight difference due to the fact that the HPV vaccine trials provide some degree of possibility, if not certainty, regarding a positive outcome.

---

Posted by: eightnine2718281828mu5 on June 18, 2008 at 10:00 PM | PERMALINK

link

---
That at some point the black community needs to stop invoking Tuskegee as an excuse for ignoring the medical community? Jeremiah Wright cited Tuskegee as his basis for believing that the US government might have been responsible for the AIDS virus - per RAND, that paranoid fantasy costs lives.

In a different and better world the community affairs director for a hospital would use her college education and neighborhood roots to educate and reassure the community that her hospital was not actually interested in recreating ghastly medical misadventures from the past. In this world, it looks like the Sister Grim is less interested in resolving these grievances and more interested in nursing them.
---

Posted by: eightnine2718281828mu5 on June 18, 2008 at 10:06 PM | PERMALINK

Sharia law doesn't recognize corporations. The individuals would be personally responsible -- including the executives.


I hope Blackwater's attorneys have thought this through fully. Because, gee, I would really hate to see Eric Prince sentenced to beheading.

Posted by: kc on June 18, 2008 at 10:08 PM | PERMALINK

Cute story, however, can we call the effort to restrict or limit civil suits something other than "tort reform", please?

Posted by: larry birnbaum on June 18, 2008 at 10:18 PM | PERMALINK

How about we call it the Insurance Company Protection Racket?

Posted by: on June 18, 2008 at 10:36 PM | PERMALINK

"tort deform" -- is that an improvement?

Posted by: dr2chase on June 18, 2008 at 10:42 PM | PERMALINK

This is an amusing blog post, but it's routine in international litigation to argue that the law that is most favorable to you should apply to your case. The Blackwater case, as far as what's conveyed in Kevin's post, isn't exceptional for trying to apply foreign law.

It would certainly be ironic though if a lot of private-but-conservative interests like Blackwater, especially if they somehow had blowhard conservative politicians or ex-politicians (who had demagogued a lot about Christianity and Islam on the national stage) connected to them, started arguing for the application of Sharia law in a lot of transnational litigation.

Posted by: Swan on June 19, 2008 at 12:12 AM | PERMALINK

How can we get conservative blogs whining about this? What would Michelle Malkin say?

Posted by: Anthony on June 19, 2008 at 12:45 AM | PERMALINK

So when is CitiBank going to demand that it not be allowed to charge any interest on my Visa?

Posted by: gregor on June 19, 2008 at 2:19 AM | PERMALINK

Having worked as in-house counsel for the Saudi Arabian national oil company for over a decade I have learned a thing or two about this subject.

First, it is indeed true that Shari'a law does not recognize the doctrine of "respondeat superior" - basically responsibility flows uphill from a servant/subordinate to the person for whom he is working. It does, however, allow for contractually accepting such liability. So we always made sure that in, say, a transportation services agreement we would in the case of an accident have recourse against the company, not just against the poor driver from Bangladesh making (maybe) sixty dollars a month.

It is not true that Shari'ah does not recognize Corporations; only that in the case of a tort, it looks to the individual directly responsible, rather than to the Corporation he is working for. That does mean that the executives will rarely be held accountable, as they will not be the ones getting their hands dirty, so to speak.

Corporations are legal entities that can enter into contracts and be held accountable in court for a breach or contract. And as I noted, it is possible to use contracts to mitigate some of the more extreme aspects of Shari'ah.

One other reason why Shari'ah might appeal to "tort reformers" is that there are strict limits on damages for wrongful death and injury. When I left Saudi Arabia the cap for the wrongful death of a muslim man was 100 camels, or about 110,000 riyals - or about $ 30,000. For a Muslim woman or a non-Muslim man it was half that; and for a non-Muslim woman a quarter of that.

Posted by: Amsterdam on June 19, 2008 at 4:14 AM | PERMALINK

"How the fsck does one get from a book written in the 7th century to a definitive pronouncement on the esoteric rights and responsibilities of companies?"

Guess they must have activist Shari'a judges in Afghanistan, too. :)

(It's a "living document," for crying out loud.)

Posted by: Nancy Irving on June 19, 2008 at 6:32 AM | PERMALINK

How the fsck does one get from a book written in the 7th century to a definitive pronouncement on the esoteric rights and responsibilities of companies?

The Anglo-American common law doctrine of respondeat superior probably dates back that far.

Note that the status of Blackwater as a corporation is something of a red herring--individuals and apartnerships are responsible for the negligence of employees in the course and scope of their employment as well.

Posted by: rea on June 19, 2008 at 7:26 AM | PERMALINK

Interesting. I'm worth only 50 camels in Saudi Arabia if a Saudi causes my wrongful death? Looking on the bright side, that still beats most parts of Mexico.

Posted by: Bob M on June 19, 2008 at 8:41 AM | PERMALINK

So when is CitiBank going to demand that it not be allowed to charge any interest on my Visa?

LOL Now, we're getting somewhere...

Posted by: Doc at the Radar Station on June 19, 2008 at 10:23 AM | PERMALINK

Swan, you're being purposefully disingenuous here if you blithely write this off as a normal attempt by a company to obtain the most favorable legal circumstances. Blackwater has strenuously argued that it should NOT be held responsible under Iraqi law for the numerous murders and reckless homicides committed by its employees, and the Bush administration has consistently asserted immunity from local prosecution for any such acts. In fact, American demands for such immunity is one of the major sticking points in the so-far failed attempts to negotiate a joint security agreement with the Maliki government to replace the one expiring at the end of the year. But now that a Blackwater subsidiary is being sued by Americans, all of a sudden there's a rush to local laws.

The political dimension cannot also be ignored here. Blackwater is just one of many Bush contributors and beneficiaries vociferously supporting the notion that we're fighting dirty Islamic terrorists to preserve our American way of life. Apparently that means Blackwater is then free to throw off good ol' American laws in favor of them dirty Islamic laws that taxpayers are paying them to fight. If Obama had proposed that Islamic law be resorted to in this situation, Fox News would have called for his immediate arrest for treason. But because it's a Republican business advocating for this, there's no apparent contradiction in the minds of "conservatives."

Posted by: bluestatedon on June 19, 2008 at 10:27 AM | PERMALINK

The Anglo-American common law doctrine of respondeat superior probably dates back that far.

Not likely. The rediscovery of Roman law began in the late eleventh century.

But I do recall a common statute in barbarian laws whereby a slave would be freed if his owner forced him to work on a Sunday (if it was discovered the slave worked of his own free will, he was to be beaten), but that's as close as I can get.
.

Posted by: Grand Moff Texan on June 19, 2008 at 11:06 AM | PERMALINK

Here's the Raleigh News & Observer article, permalink:
http://www.newsobserver.com/917/story/1113022.html

Posted by: Jamez Thirteen on June 19, 2008 at 11:12 AM | PERMALINK

Privatize the gains and hit the taxpayers with the losses. This is standard operating practice for more than a decade. Could Kevin please learn to move beyond his surprise that conservatives and corporate America are, in fact, evil evil-doers?
Posted by: anon

You'd think, huh? Don't hold your breath.


Bill Moyers : "Capitalism breeds great inequality that is destructive, unless tempered by an intuition for equality, which is the heart of democracy. When the state becomes the guardian of power and privilege to the neglect of justice for the people who have neither power nor privilege, you can no longer claim to have a representative government."

Posted by: MsNThrope on June 19, 2008 at 11:14 AM | PERMALINK

Because, gee, I would really hate to see Eric Prince sentenced to beheading.
Posted by: kc

I wouldn't bat an eyelash.

'The "consent of the governed" has become an empty phrase. Our textbooks on political science are obsolete. Our state, our nation, has been hijacked by oligarchs, corporations and a narrow, selfish political elite, a small and privileged group which governs on behalf of moneyed interests.' - Chris Hedges
Posted by: MsNThrope on June 19, 2008 at 11:18 AM | PERMALINK

This (below), is inapposite. How can you sign an employment contract which limits the rights of unintended and unascertainable creditors (victims of tort)? One can only sign an employment contract which limits her own, and the company's own, rights.

On a much drier note, this is nothing new; the only difference is that Blackwater was either too inexperienced or too duplicitous to get its employees to sign an agreement that expressly consented to application of shari'a law. If it had it might be able to enforce it. See Spradlin v. Lear Siegler Management Services, 926 F.2d 865 (9th Cir. 1991) (employee bound by clause that provided that "This employment agreement shall be governed by the laws of the Kingdom of Saudi Arabia. The courts of Saudi Arabia shall have sole jurisdiction over any disputes arising out of this Employment Agreement.")

Posted by: PDXESQ on June 19, 2008 at 11:23 AM | PERMALINK

Blackwater and its employees and executives may be a bunch of bloodthirsty, felonious assholes, but that doesn't make their argument necessarily meritless. There's an entire body of jurisprudence in the United States concerning choice of law. Typically, these involve cases where the cause of action arose in one state involving a party from a second state, and that party brings suit in their home state. The judge in that instance would have to determine whether the home state law, or the cause of action state law would apply. This seems to be the question posed by Blackwater. I know nothing about international choice of law, but perhaps we have common law antecedents here in the US that deal with this question? Any choice of law experts out there?

Posted by: Everett on June 19, 2008 at 11:47 AM | PERMALINK

Blackwater USA's ONLY PR representative in the world:
Anne Tyrrell
Telephone 703-852-4320
E-mail media@blackwaterusa.com

Charlotte N&O's Circulation Desk:
Telephone 704-358-5000
E-mail online@charlotteobserver.com

Posted by: Brian on June 19, 2008 at 12:14 PM | PERMALINK

*

Posted by: mhr on June 19, 2008 at 12:23 PM | PERMALINK

The Charlotte News & Observer seem to have deleted its story. No retraction / correction either, though.

Posted by: Jim D on June 18, 2008 at 8:07 PM

Apparently the story was in the Raleigh News & Observer, not the Charlotte Observer (though they now may be part of the same chain). That's where the confusion lies, I believe.

Posted by: Vincent on June 19, 2008 at 12:36 PM | PERMALINK

In Saudi Arabia where Sharia Law applies, the CEO of a corporation can be punished for the actions of his subordinates if the subordinate is no longer in the country.

So Mr. Prince could be beheaded if a Blackwater employee committed murder or otherwise killed an innocent civilian.

Posted by: dg on June 19, 2008 at 4:06 PM | PERMALINK

I am informed by a friend who was married to a Saudi and speaks some Arabic that the punishment would not be beheading. Instead, he would be buried up to his neck and stoned to death.

Posted by: OriGuy on June 20, 2008 at 5:11 AM | PERMALINK

Just so you guys know- "Sharia Law" itself isn't something that all muslims universally accept. Saudi Arabia has a bunch of laws they throw under the rug of "Sharia Law" but have no basis in the Quran or anything else. Infact, most all Sharia law has no basis in the Quran. despite the fact that Mecca and Medina are in Saudi Arabia- try not to use that disgusting excuse for a gov't as representative of Islam.

Posted by: Theguy on June 20, 2008 at 10:42 AM | PERMALINK

First off let me say that i love your site www.washingtonmonthly.com a lot
now.. back on topic lol
I cant say that im 100% with what you wrote... care to elaberate?

Posted by: christian on August 24, 2008 at 9:44 AM | PERMALINK




 

 

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