Category Archives: international

Volkswagenwerk Aktiengesellschaft v. Schlunk

486 U. S. 694

June 15, 1988

After an automobile accident, Herwig Schlunk wanted to sue the German company Volkswagen. He served their American subsidiary, on the understanding that the notice would be relayed back to the German parent corporation. Volkswagen said they should have been served in Germany, according to the dictates of the Hague Convention. Schlunk responded that this was not necessary if proper service could be effected by through the American subsidiary.

The Supreme Court ruled unanimously that service to the subsidiary was acceptable. O’Connor looked through the drafting history of the Hague Convention, and concluded that it intended to leave local laws about service still operating, with international service only being required if local laws failed to give adequate notice. According to American law, service on the German parent is considered legally effectuated when the American subsidiary is served, so there was no need for the Convention to come into play.

Brennan, joined by Marshall and Blackmun, dissented from much of the reasoning. They disputed that the Convention was meant to leave all local laws unchallenged, because this would often allow for ineffective service. Nonetheless, Brennan did agree that a wholly owned subsidiary was good enough that international service could be seen as completely unnecessary.

My strongest feeling about this case has nothing to do with any of the legal principles. Instead, my key takeaway is that Volkswagen’s parent company is ridiculously hard to spell.


Van Cauwenberghe v. Biard

486 U. S. 517

June 13, 1988

Van Cauwenberghe (we’ll call him V.C. from now on) was a Belgium citizen who was extradited to America for a criminal trial. While in America for the trial, he was served with a closely related civil lawsuit. V.C. moved to dismiss the civil suit on the grounds of forum non conveniens, and on the grounds that criminal defendants present in America on extradition were immune from civil suits. The District Court ruled against these two grounds, and V.C. tried to appeal immediately, before the civil trial. The question was whether V.C. could appeal the jurisdictional issues prior to the completion of the District Court trial.

The Court ruled unanimously that early appeal was not possible. Marshall said that Court precedents allowed early appeal only if the issue was readily separable from all other issues in the trial, and only if review would be impossible after the full trial. With respect to immunity, Marshall held that the ultimate right sought by immunity was the right to not be subject to a binding final judgment, and not the right to have no trial at all. Thus, the immunity issue could still be reviewable after the full trial. With respect to forum non conveniens, Marshall said the determination was too intertwined with various other trial issues, and not readily separable at all. Poor V.C. was just going to have to go through his civil suit.

At a minimum, I wanted to see a dissent. The jurisdictional concerns raised by V.C. are not trivial, and I do think an alleged complete lack of jurisdiction is important enough for immediate appellate review. On both grounds, Marshall’s reasoning does not entirely satisfy. Reading this opinion leaves the unfortunate aftertaste of a foreigner being railroaded, à la Amanda Knox.

Boos v. Barry

485 U. S. 312

March 22, 1988

Some protesters wanted to gather at the embassies of the Soviet Union and Nicaragua and display critical signs about those nations. A District of Columbia regulation prohibited both congregating and displaying critical signs within 500 feet of embassies, supposedly because ambassadors deserve the highest level of dignity. The protesters claimed that these rules were obvious First Amendment violations.

The Court unanimously upheld the congregation ban, but struck down the signage ban 5-3 (Kennedy did not participate). A federal court had long ago interpreted the congregation ban to cover only violent congregations, and allow for peaceful ones. While federal courts could not usually narrow a DC regulation like this, the regulation had been originally passed by Congress rather than the DC Council, so it was ok. Because the federal court had narrowed the reach so drastically, an equal protection challenge based on labor unions being statutorily exempted was moot.

On the signage issue, there was no narrowing federal court ruling, and O’Connor did find that it violated the First Amendment. Because the regulation only banned signs that brought foreign nations into “disrepute,” it was a content based speech restriction. Furthermore, the regulation was not written to combat the secondary effects of this speech, like congestion or visual clutter, but the speech itself. While affording “dignity” to ambassadors was a possibly compelling interest, O’Connor did not find the regulation narrowly tailored enough to pass muster.

In an irrelevant concurrence joined by Marshall, Brennan whined about a previous decision which had allowed speech to be banned if its secondary effects were harmful. Rehnquist, joined by White and Blackmun, dissented. As is typical, he offered no argument; this time he simply said ‘read what the dissenting judge in the lower court wrote.’ Rehnquist’s unexpressed objections notwithstanding, the Court made the right decision. And I have to say, I really hated the idea of ambassadors deserving “dignity,” and freedom from offense. This is a deeply unbiblical notion. Evil nations must be openly called out as evil – just read the Old Testament prophets.

Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa

482 U. S. 522

June 15, 1987

A French manufactured plane crashed in Iowa, and the inevitable lawsuit ensued. The District Court tried to order extensive discovery over in France under the Federal Rules of Civil Procedure. The French argued that the Court was obliged to follow the procedures in the Hague Convention, a multi-lateral treaty prescribing common rules for evidence gathering in international disputes. The District Court held that, since the French submitted to the court’s jurisdiction, the Hague Convention did not even apply.

The Supreme Court ruled 5-4 that the District Court could use the Federal Rules rather than the Hague Convention. Justice Stevens wrote the majority opinion, which examined the Convention and found its language clearly permissive rather than mandatory. Using the same textual analysis, Stevens also rejected the claim that the Hague Convention did not apply at all, and showed that any evidence to be collected abroad was within the treaty’s reach. Nonetheless, the majority opinion rejected the idea that the Hague Convention should always be resorted to first, before using the Federal Rules. Stevens pointed out that some Convention procedures were unwieldy and time consuming, and suggested that allowing national rules to be used in the first instance was consistent with the ideal of international comity. He concluded that courts should make case specific determinations as to which procedures would work best.

Blackmun dissented, and was joined by Brennan, Marshall, and O’Connor. While he recognized the permissive rather than mandatory language of the treaty, he felt the Convention should be used first. He thought courts were ill-equipped to decide which set of rules would work best, and did not think comity was well served by ignoring a major multi-lateral convention. The dissent also showed that the majority had greatly exaggerated the inconvenience and uncertainty of using Hague processes, and that there were informal means of securing evidence under the Convention which operated quickly and efficiently. More broadly, Blackmun bemoaned the majority’s seeming aversion to international co-operation, common ground, and reciprocity.

This is another one of those cases where I am not certain which side is correct legally, but I definitely know which side I prefer politically. As far as I am concerned, the less international law the better. Global co-operation and collaboration rarely leads to anything helpful or godly (three words: Tower of Babel).