Lawyers Proving the ‘Slippery Slope’ is Real


If a law can't be used for things it wasn't meant to be used for... what good is it?

If you’ve spent any time at all on Internet message boards or in college debate class you’ll have seen the rafters vibrate with righteous condemnation against the “slippery slope argument.” It is claimed that a worst case, ultimate extrapolation of a thing is a bad argument because it isn’t necessarily a truism. Supporters of the Second Amendment, for instance, are scolded by liberals when the supporter says that any new gun law is “one more step to banning guns.” The gun restricter says that the gun supporter is employing a “slippery slope” argument and that it is idiotic to claim that one new law must mean that a gun ban is the ultimate outcome. One doesn’t necessarily follow the other.

It is a logical conclusion, of course, that one step won’t necessarily lead to a series of other steps. But, humanity isn’t ruled by logic and those small steps that ultimately lead down the road to ruin are far more common than not. Here is another example of how one step led to another to bad effect and, as is far too often the case, the situation at hand was made in the arena of the law. And recently that slope descended even further down that road to hell.

In a recent Washington Post article, Curtis A. Bradley and Jack L. Goldsmith detailed a slippery slope situation that took 200 years to slide down when activists realized that they could warp the meaning of a law written in 1789 to fit their political goals in 1980. Naturally, those political goals were a leftist’s dream come true.

In 1789, the Alien Tort Statute became American federal law. This law was originally meant to give a more stable venue for cases brought against foreign litigants bringing consistency in U.S. law to such cases . It was also meant to help foreign governments avoid the confusion that would have resulted in having to take into consideration the practices of all our different states, giving them just one forum instead of 13 (now 50) to contend with. This helped ease any diplomatic tensions that might have occurred with foreign nations being forced to deal with so many different courts in the U.S. Seems like a logical law, right?

200 years later enter the radical left.

The statute hid in obscurity for almost 200 years before a federal appellate court in New York invoked it in 1980 to allow victims of human rights abuses committed abroad to sue foreign officials in U.S. courts. This holding turned the statute on its head by creating, rather than reducing, friction with other countries. It also spawned a cottage industry of human rights litigation.

The Post article says that the initial cases brought forth using this new interpretation of the 1789 law were “largely symbolic” and altered nothing imposing no real penalties. But soon radical leftists warped the law even more. New cases began to prove much farther reaching as U.S. corporations began to be targeted as “aiding and abetting” those charged with the so-called civil rights abuses occurring in other countries.

These cases are not merely symbolic — the U.S. corporations have deep pockets and U.S. bank accounts — and present enormous opportunities for judicial meddling in foreign relations.

A case brought against South Africa by class-action attorneys many years after apartheid ended is a “dramatic example,” say Bradley and Goldsmith. It was brought to a New York court in hopes of penalizing American corporations for having had dealings with South Africa during the years of apartheid.

The Bush administration opposed the litigation claiming that it would seriously impact the executive branch’s ability at diplomatic relations with the current South African government and would have “adverse consequences” on economic relations. Even the post-apartheid South African government opposed the litigation because they felt it interfered with its own policies “embodied by its Truth and Reconciliation Commission.” Even the Supreme Court ruled that the executive branch had privilege in dealing with South Africa.

But the arrogant New York court didn’t care.

This should have been enough for dismissal. Five years ago, the Supreme Court said in reference to the South Africa litigation that “there is a strong argument that the federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” Yet the New York court, unpersuaded, concluded that allowing the lawsuit to proceed “would not contradict American foreign policy in a manner that would ‘seriously interfere with important governmental interests.’ ” Thus it supplanted its foreign policy views for those of the federal government and refused to respect South Africa’s efforts to move its society forward.

Unfortunately, the activists in the New York court refused to dismiss the case despite so many voices opposed to it.

What is the result? This case can now go forward to interfere with the right of South Africa to reconcile with its own past in its own ways and could have major economic impact on our own economy by ruling that American firms are now liable for what some other country did with its people.

More significant, the court ruled that firms were liable for a foreign government’s human rights violations, even if they did not engage in the abuses or intend to facilitate them, as long as companies were aware that their business activities would substantially assist the government’s illegal practices. This put GM and Ford on the hook for supplying trucks that the South African government used to attack anti-apartheid activists, and IBM for providing computers and software that the government used to register and segregate individuals.

And thus the slippery slope is well traveled. From a law meant to help other nations to deal with our nation to one now warped to be used interfere with other nations dealing with their own people, we see this law misused by radical leftist activists as well as activist judges looking to find what they want in law instead of reading it as is.

So, next time someone says that a slippery slope argument is not valid, tell them of this South Africa case. Then remind them of Shakespeare’s derisive comment that first we must “kill all the lawyers.”


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11 Comments Leave a comment

never works the otherway

larryp Sunday, June 7th at 9:41AM EST (link)

tho, wherein the right finds a law that scuttles one of the left’s sacred cows.
Like applying the 14th amendment that allows anchor babies of illegal aliens to babies yet born. Can’t block the anchor babies and moms. so can’t blocke the babies in utero either.
..but oh no…just works for the donks to dismantle the American ethos.

Have they tried to use the 14th Amendment to protect the unborn? -nt

molybdanthan (Diary) Sunday, June 7th at 2:32PM EST (link)

great question, because there certainly is much more of a basis

Mike gamecock DeVine (Diary) Sunday, June 7th at 3:02PM EST (link)

for requiring a trial to find a baby in the womb guilty (due process after all) before depriving the person of its life!

Mike DeVine’s Examiner.com, Charlotte Observer and The Minority Report columns
“One man with courage makes a majority.” – Andrew Jackson

 
 
 

never works the otherway

larryp Sunday, June 7th at 9:41AM EST (link)

tho, wherein the right finds a law that scuttles one of the left’s sacred cows.
Like applying the 14th amendment that allows anchor babies of illegal aliens to babies yet born. Can’t block the anchor babies and moms. so can’t blocke the babies in utero either.
..but oh no…just works for the donks to dismantle the American ethos.

 

Which part of Alien is confusing?

red4ever (Diary) Sunday, June 7th at 10:30AM EST (link)

I work in human rights. The ATA is a necessary tool in holding foreign human rights abusers accountable. Yeah, it is mostly symbolic since it is a civil action and you are never going to see a dime from the perpetrator. But, it brings attention to the crime and puts the world on notice that such things will not be tolerated by the US.

However, it is clear from the wording of the law that is only involved foreign defendants. In other words, not a US “person.” Person is in quotes because under the law, a corporation is a person. If you want to sue a US person for human rights abuses, there are a myriad of other laws to do so. This case should have been dismissed simply because the law does not apply in this case. It would be like allowing a civil case for battery to go forward when it was all that happened was a neighborhood kid knocked a ball onto your property. Land cannot be battered, it can only be trespassed or converted.

The hottest places in hell are reserved for those who, in times of great moral crisis, maintain their neutrality.
Dante

So, let's see...

skorrent1 (Diary) Sunday, June 7th at 1:49PM EST (link)

We can’t sue GM and IBM because they are US “persons”, but we can sue Mercedes and Sony for facilitating apartheid in South Africa because they are foreign “persons” with assets in this country?

What gives a person in this country standing to sue for what we claim to be “human rights violations” in another country to their own citizens? Do we rely on the stupid UN definitions of “human rights” that claims corporal punishment is a violation of the “human rights” of a child? Or that all capital punishment is a violation of “human rights”?

The Alien Tort Claims Act

red4ever (Diary) Sunday, June 7th at 2:38PM EST (link)

That is the law that gives a person in this county– usually a foreign national — the right to sue officials in another country for human rights violations. America gives people the right to redress that they might not otherwise have in their home countries — because of the actions of the very human rights abusers.

It was the families of victims of the bombing over Lockerbie through their ATA claim that kept the pressure on Libya. It was families of victims of Pinochet in Chile suing here that really made the world know what happened there. There are many other examples.

I, for one, want to live in a country of freedom that allows redress in the courts to those oppressed. Because the UN sure as hell ain’t gonna help them.

The hottest places in hell are reserved for those who, in times of great moral crisis, maintain their neutrality.
Dante

 
 
 

Too Long Arm of the Law

lukematthews (Diary) Sunday, June 7th at 10:50AM EST (link)

Bravo for bring up this all too common occurrence in American jurisprudence. A ‘line in the sand’ must be drawn from time to time to limit legal actions to their intended object. Far reaching appellate courts are loathe to limit their power and that is one reason judicial activism is so Fabian in concept. It creeps up on you until its faulty, loose reasoning becomes accepted practice. Sloppy interpretations have extenuating circumstances for all.

These actions could easily be limited by ruling jurisdictional limits. “This put GM and Ford on the hook for supplying trucks that the South African government used to attack anti-apartheid activists, and IBM for providing computers and software that the government used to register and segregate individuals.” There is no reasonable way to find auto makers or computer makers had control over how their products were used. Moreover, the courts do not have jurisdictional control over acts committed in South Africa. This idea of ‘should have know or could have known’ as a legal linkage from bad actors to producers is the insidious culprit. This is akin to the similar doctrine espoused of ‘appearance of wrongdoing’ so happily promoted by the legal extortionists. They are hell-bent on creating a linkage where none can be proved by direct causal arguments. Instead they are relying on a kind of indirect causal inference as proof. Very shoddy and dangerous precedent.
Thanks for the post.

Congress has the Constitutional obligation ...

skorrent1 (Diary) Sunday, June 7th at 1:55PM EST (link)

To provide these jurisdictional limits on the federal courts. They have, on the whole, been too chicken to try it.

 

Slippery slope is more valid than not

Joliphant (Diary) Sunday, June 7th at 2:06PM EST (link)

When what you are talking about as the endpoint is the goal that people are pushing towards. This might not be applicable to the original formulation of the law, as the goal was most likely to foster better commercial relations with foreign nations and nobody had the desire to pervert the law to these ends at the time.

The real slippery slope is a legal system, that has been by and large defining and redefining the limits of its own power.


“Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.”
-Thomas Paine: The American Crisis, No. 4, 1777

Oops that shouldn't have been a reply to the comment above

Joliphant (Diary) Sunday, June 7th at 2:07PM EST (link)

NT


“Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.”
-Thomas Paine: The American Crisis, No. 4, 1777