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More on the New Search Feature

Ted Folkman — Fri, 24 May 2013 13:05:15 +0000

Readers, have you tried the new Letters Blogatory search feature yet? Here are a couple of suggestions for how you can use it.

You can search on more than one criterion. So for example, you could search for all cases from the Southern District of New York that involve § 1782. Or you could search for all US state court cases involving the Hague Service Convention. Go ahead—give those two searches a try!
You can also select multiple courts or multiple statutory provisions. So for example, you could search for all cases that involve § 1782 from the Southern District of New York or the Seventh Circuit.
At the top of the screen, in the menu bar (click on the “Navigation” link if you’re using a mobile device), you’ll see a new menu item called “Index.” It will feature search pages to help you narrow in on what you’re looking for. So far, the only page that’s live is the US State Court index. Give it a try!

As I noted in my last post on this topic, my team of volunteers and I have gotten much of the database coded, but not all. I am going to try to finish up the coding as time permits, and I will let you know when it is done. Until then, you can’t really have any confidence that the search results will capture all Letters Blogatory cases of the day. But I’m getting there!

New Letters Blogatory Search Feature!

Ted Folkman — Thu, 23 May 2013 17:17:37 +0000

Readers, check out the Search widget on the right side of the screen. Now you can do full text searches, as before, and you can search for cases decided by particular courts or cases involving particular statutes or rules.

There are still some kinks to iron out. For example, I have to rename the various courts (right now there are lots of courts called simply “Eastern District”, for example—I am going to change these to make it clear which is the Eastern District of New York, which is the Eastern District of California, etc.). I also would like to find a way to make the hierarchical nature of the search choices clear. I’ll also try to make the widget look nicer. But I wanted to get this out there to give you a sense of what’s coming.

Please note that not every case I’ve written about has been coded, but for the past few months and from now on, each and every case is being coded. As with everything at Letters Blogatory, I’m providing this search capability “as is,” i.e., don’t confuse it or anything else you read here for legal advice!

I want to give a special thanks to two Letters Blogatory readers who volunteered their time to help with the coding: Fanny Cornette, and Rebecca Phalen. Thanks to both for their efforts!

If you have ideas for further improvements to Letters Blogatory’s search functionality, please let me know. The goal is to make what is now a pretty good-sized database of cases more useful and accessible to lawyers.

Thanks as always for reading.

Social Sharing Update: Mission Accomplished!

Ted Folkman — Mon, 06 May 2013 10:05:04 +0000

I want to thank those of you who wrote to me with suggestions for dealing with the privacy problems that arise when websites use social sharing buttons. The good news is that I think I have found a solution that works. It’s software called Love Button, published by deLucks GmbH. At the foot of each post, you’ll see a sharing icon that you can click. When you click it, you’ll see several options for social sharing as well as for printing or emailing posts. As I understand the software, no data is transmitted to any third party until you make your second click.

And so I say “Mission Accomplished!” Please let me know if you have trouble with the new icons, and please share your thoughts on internet privacy or any other topic.

Letters Blogatory Goes Over To The Dark Side

Ted Folkman — Thu, 02 May 2013 14:35:58 +0000

Update: If you are particularly interested in this issue, check out this post by noted privacy and cryptography expert Bruce Schneier.

Readers, I tried. Really, I did. As you may remember, I rolled out privacy-sensitive sharing buttons with great fanfare just a couple of weeks ago. The idea was to let people share Letters Blogatory posts with their Twitter followers, Facebook friends, etc., but to give them the choice whether to activate the sharing buttons (which allow social networks to gather data about your web browsing).

Unfortunately, the sharing button software I was using stopped working when I upgraded other software, so I had to remove them. But I really liked the idea of social sharing! And so with a heavy heart, I am including the privacy-invading sharing buttons at the foot of Letters Blogatory posts. I think it is ridiculous that the social networks use these buttons to track web browsing, and I think it is ridiculous that there’s no way (no way I could find, at least) to create an “opt-in” system. But these buttons are ubiquitous on the web, including on law blogs, and very useful. And so I am just going to use them, despite my misgivings.

I have two requests for you. First, if you are really concerned about this change, please let me know. If my readers don’t want them, then I don’t want them.

Second, if you know how to program computers and you would like to help fix the software conflict that led me to remove the privacy-sensitive buttons, please let me know! The Internet would thank you.

I will be making the appropriate changes to my privacy policy soon.

Photo credit: Bernie Thomas

Are you Going to the ABA Section of International Law Spring Meeting?

Ted Folkman — Wed, 03 Apr 2013 15:05:19 +0000

Readers, if you will be at the ABA International Law Spring Meeting in Washington later this month, and you would like to participate in an informal Letters Blogatory meet-up, please let me know! I would love to meet some of you in person. Depending on the response I get, I will make some suggestions about a possible venue. If you are a Letters Blogatory e-mail subscriber or contributor, you will receive an email asking you this same question sometime today or tomorrow.

Updates for Regular Readers

Ted Folkman — Wed, 20 Mar 2013 15:26:11 +0000

Readers, I have a couple of updates for you on the “state of the blog”:

As of today, you can read Letters Blogatory on your Kindle! If you’re like me and you read the paper in the morning on your Kindle, you might find this handy. Check it out!
Those of you who read Letters Blogatory on small-screen devices may have noticed that the menu bar was not working. I have fixed the problem, so you can now tap on the word “Navigation” and the menu will expand.

Letters Blogatory Sues the Government Under FOIA

Ted Folkman — Mon, 18 Mar 2013 10:00:29 +0000

Readers who are following the Lago Agrio case will know that until the Second Circuit decided Naranjo (and maybe even now), one of the main questions Chevron sought to litigate in New York was whether the Ecuadoran courts were systematically inadequate, that is, whether they met the standards of impartiality and due process necessary to allow the Lago Agrio judgment to be recognized under US law. One of the sources that folks cite when discussing the adequacy of the Ecuadoran judiciary—or of another country’s judiciary, for that matter—is the State Department’s Human Rights Reports. Those reports include assertions about the independence of the foreign country’s judiciary. For example, the 2011 report on Ecuador states:

While the constitution provides for an independent judiciary, in practice the judiciary was susceptible to outside pressure and corruption. The media reported on the susceptibility of the judiciary to bribes for favorable decisions and faster resolution of legal cases. Judges occasionally reached decisions based on media influence or political and economic pressures.

The language of the reports changes from year to year. For example, in 2007 the report on Ecuador read:

While the constitution provides for an independent judiciary, in practice the judiciary was at times susceptible to outside pressure and corruption …

How do these changes get made? How does the State Department decide whether a particular foreign judiciary has lived up to standards? My guess—but it’s only a guess—is that interested parties lobby the State Department. My guess—and again, it’s only a guess—is that the lobbying might be especially intense when, as in the Lago Agrio case, the quality of a foreign judiciary is relevant to a significant pending case.

So what to do? Well, in August 2011, I made a request to the State Department under the Freedom of Information Act, seeking:

1. Documents constituting, referring to, or concerning requests made to the state Department by corporations or other business entities; by lawyers, consultants, lobbyists, or others representing corporations or other business entities; or by members of Congress or congressional staffers, proposing modification of the description of the judiciary of any foreign state in the State Department’s Human Rights Report or Judicial Assistance reports relating to that state.

2. Documents constituting, referring to, or concerning reports or correspondence by corporations or other business entities, or by lawyers, consultants, lobbyists, or others representing corporations or other business entities, relating to actual or alleged corruption, failure to provide due process of law, partiality, or lack of independence of the judiciary of a foreign state.

Looking back, I probably should not have limited my requests to business interests, but that’s water under the bridge now. Anyway, I have had numerous telephone calls and exchanged several letters with the State Department’s FOIA office, but to date the State Department has not responded formally to my request. ¹ This is not terribly surprising, as many government agencies have a FOIA backlog, but since the State Department has missed an estimated date for a response that it gave me by telephone by several months, it’s time to take firmer measures. And thus today’s case of the day is Folkman v. State Department. I filed a complaint on Friday in the federal court here in Boston seeking production of the documents I have requested.

What do I hope to get out of this? First and foremost, I hope to be able to report on a previously unreported corner of the Lago Agrio affair. Now it may turn out that no one lobbied the State Department in connection with the case, but that’s what the FOIA request is aimed at finding out. Second, it will be interesting to look more broadly at whether companies are actively seeking to shape the Human Rights Reports for their own purposes. Maybe I will get an article out of it!

I have set up a page where you can keep track of all of the papers filed in the case. You can navigate to that page using the “Special Coverage” menu.

Notes:

The State Department did deny my request for expedited handling. I had made the request on the grounds that I was a representative of the news media, but to no avail. I think if I litigated this issue I would win, but I also think that the question of bloggers as reporters is more than I want to bite off, so I am letting it lie. But if you are reading this and would like to take up the torch, let me know! ↩

Wanted: Letters Blogatory Data Coding Helpers

Ted Folkman — Wed, 06 Feb 2013 05:07:46 +0000

Letters Blogatory Wants You To Help Code Data

I am working on a project that will, I think, make Letters Blogatory much more useful to practicing lawyers. It will allow readers to find all cases of the day from a particular court, or all cases of the day on a particular statutory or treaty provision, with a minimum of fuss. When it is ready, I think you will find it cool, in a law-geeky kind of way. The difficulty is time. Believe it or not, Letters Blogatory has 683 posts and counting. So it will be very difficult for me to find the time to keep up with my writing, do the coding, and incidentally practice law full time.

Therefore, I am looking for a few good men and women to help out with the coding. The job will be pretty easy: I will ask you to read posts and tag them appropriately. You will earn a big online thank you, a free copy of my book, International Judicial Assistance, and a chance to look behind the curtain at how a blog really works.

If you are interested, please let me know! I could really use the help, so thank you in advance for considering this.

Year In Review: Who Are You, And Why Are You Here?

Ted Folkman — Wed, 26 Dec 2012 11:00:45 +0000

As I hope all readers know, I have a very strict privacy policy, and I don’t use Google Analytics, Twitter share buttons, or any other tools that would allow Big Brother to track your visits to Letters Blogatory. But I like to look at the statistics myself to see where in the world you live, what Google searches bring you to Letters Blogatory, and what topics are of greatest interest to Letters Blogatory readers. In this post, I am going to share a little of this data with you, and then ask for your suggestions for the coming year.

Looking Behind The Curtain: Who Reads Letters Blogatory?

Letters Blogatory readers come from all over the world (hello, Tuvalu!) But there are pretty clear geographic patterns to the readership. In descending order, the top ten countries for Letters Blogatory readers are: the US, the UK, Canada, Germany, Italy, France, India, Australia, Ireland, and Spain. It’s not a surprise, given that I write in English, that the Anglosphere is dominant. The remaining countries are from the core of the EU, which again is not surprising given the high interest among European lawyers and scholars in private international law issues. I would like to note that China is country #11, just behind Spain, and one of my goals is to try to write on topics that will be of greater interest to East Asian readers in the coming year.

What are you reading?

I only started keeping statistics in the middle of the past year, so my look at what interests you is necessarily incomplete. We had a few big stories in the first half of 2012—I am thinking particularly of the coverage of the Second Circuit’s decision in Naranjo and my favorite feature from the last year, the symposium on forum non conveniens and recognition of foreign judgments. But based on the data I have, I see that the issues that have drawn the most attention from readers are my coverage of the Belfast Project, my Lago Agrio coverage, the Argentine sovereign debt cases, and Chafin v. Chafin, the case now before the Supreme Court on the Hague International Child Abduction Convention. (My post on the Sea Search Armada case was also a big draw, mainly because it got picked up by a bunch of non-legal websites. Welcome, age-of-sail enthusiasts!)

Now, all of these are cases that I have put in special areas of the blog—you can find all of them using the “special coverage” button in the menu bar. So this could mean that I have done a very good job of identifying which cases should get special coverage, or it could mean that by making the choices I have, I’ve called attention to some issues and not to other issues. One of the questions I’m going to ask you to answer (see below) is: What am I not writing about that you would like to read more of?

How do you use Letters Blogatory?

As Letters Blogatory matures, I’ve continued to make changes to the back end to make it a better website. This year I installed a new search engine to improve user searches, but it turns out that almost no one uses it, so I have removed it, which incidentally speeds up the website just a bit.

I also have tried to provide several ways for you to get your daily dose of international judicial assistance adventure. You can always come to the website, of course, but I encourage you to think about subscribing to my email service (you can subscribe on the right-hand side of the screen). The software that I use to send you the newsletter is not perfect, and sometimes you may prefer to visit the website. But you may find it convenient to have the case of the day waiting in your inbox in the morning. Of course, you can also read Letters Blogatory via an RSS reader.

This year I inaugurated the International Judicial Assistance Brigade, a group of intrepid writers from around the world who have undertaken to keep me (and you) up to date on happenings in their countries. We have had some great contributions from Peter Bert, Antonin Pribetić, Jie Huang, Rafael Romano, and Fanny Cornette. How would you like to contribute to Letters Blogatory as a member of the IJA Brigade? New members are always most welcome—you can express interest using the contact page.

Your turn

Now I turn the floor over to you. Here are some of my questions, and I would be grateful for your thoughts and insights, either in a comment to this post or by email:

What topics would you like to see more of?
What topics would you like to see less of?
Are there any big stories I’m missing?
What new features would you like to see? A LinkedIn group? Better search capabilities? More indices or digests?

Thank you as always for reading Letters Blogatory! I look forward to bringing you all the latest in international judicial assistance in 2013!

The Year in Review: The Second Circuit Steps to the Plate

Ted Folkman — Mon, 24 Dec 2012 11:00:18 +0000

As I did last year, I am closing out 2012 with a couple of “year in review” posts. This gives me a chance to look back and see if I can spot themes in the past year in the wild and wonderful world of international judicial assistance.

What color are your socks?

As a New Englander it gives me no pleasure to report that New York remains the center of gravity on many of the issues that are most of interest to Letters Blogatory. The US Court of Appeals for the Second Circuit has made several notable contributions to the law in the year now ending. Let’s take a look at some of that court’s more notable decisions in 2012. (This is not a complete list: you can do a search for “2d Cir.” in my search box to find some more).

Chevron v. Naranjo. The biggest case of the year, in my view, is the Naranjo decision. Judge Kaplan had entered a preliminary injunction enjoining the Lago Agrio plaintiffs from seeking to enforce the judgment against Chevron they had obtained in Ecuador anywhere in the world. This was plainly an unorthodox and highly controversial pre-judgment remedy. The Lago Agrio plaintiffs appealed, and in the Second Circuit they prevailed. I think this was the right outcome, but I don’t agree with the reasoning. The court held that under the UFMJRA, a court cannot grant a declaratory judgment declaring a foreign court money judgment unenforceable until the judgment creditor has sought recognition of the judgment. I see no real support for this view in either the UFMJRA or the Declaratory Judgment Act. Why wasn’t Chevron’s claim just a garden variety declaratory judgment claim? My preferred rationale is that since the Lago Agrio plaintiffs have pretty clearly disclaimed any intention of seeking recognition or enforcement of the judgment in New York, and maybe in the United States, there was not, in fact, a controversy sufficient to bring the case within the courts’ subject-matter jurisdiction. But since the Supreme Court denied Chevron’s petition for a writ of certiorari, we are stuck with the decision as it is.
Brandi-Dohrn v. IKB Deutsche Industriebank. 28 USC § 1782, the judicial assistance statute, requires that the evidence sought in the United States be sought “for use” in a foreign proceeding. It’s settled that the evidence need not be discoverable under the foreign law, but since the evidence must be for use in the foreign proceeding, does it have to be admissible in evidence under the foreign law? In Brandi-Dohrn, the Second Circuit said no. While there are arguments from the statutory text that support the court’s decision, I think the best basis for the decision was practical. As the court noted: “requiring a district court to apply the admissibility laws of the foreign jurisdiction would require interpretation and analysis of foreign law and such comparisons of that order can be fraught with danger.” Let foreign courts decide what is and is not admissible in their proceedings.
Argentine Sovereign Debt Cases. The Second Circuit has issued a few rulings in cases related to Argentina’s default on its sovereign bonds, including a decision approving an attachment obtained by NML Capital and a decision rejecting the creditors’ claims that the Argentine national bank was an alter ego of the state to which they could look to satisfy the judgment. But the most significant decision by far was the blockbuster decision in NML Capital v. Republic of Argentina affirming Judge Griesa’s injunction requiring Argentina to make payments to the original debtholders whenever it makes payments to the holders of the reorganized debt, and imposing obligations on the intermediaries in New York that actually handle the mechanics of the transfers. The case construes the pari passu clause in Argentina’s trust indenture in a way that has dismayed the market, and it has struck fear into the hearts of banks and other payments system institutions. A petition for a rehearing en banc is pending. However, although Judge Griesa, reacting to intemperate statements of defiance by the Argentine government, lifted the stay that had been in place while the case was on appeal, the Second Circuit reinstated the stay shortly thereafter.

In the next most interesting case, EM Ltd. v. Republic of Argentina, the courts set up an interesting circuit split with the Seventh Circuit. The issue is whether post-judgment discovery concerning Argentina’s assets violated Argentina’s sovereign immunity under the FSIA. The Second Circuit said no and allowed Argentina’s creditors to take generalized asset discovery under FRCP 69. This is at odds with Rubin v. Iran, 637 F.3d 783 (7th Cir. 2011), cert. denied, 80 USLW 3240 (2012). A petition for rehearing en banc was denied in October. I am betting on a petition for certiorari.

Congratulations to the Second Circuit for a good year of judicial assistance cases! Let’s hope some of the other circuits will be as active in the coming year.

Photo credit: Associated Press, Global Jet (license)