Case of the Day: Masri v. Masri

The case of the day is Masri v. Masri (N.Y. Sup. Ct. 2017). The parties were married, but separated, Orthodox Jews. The wife brought an action for divorce in the civil courts. Her husband refused to give her a get, a bill of divorce that would effect a divorce under Jewish law. Without a get the wife cannot remarry under religious law, and if she were to have children, they would be considered mamzerim, which would have bad consequences for their ability to marry under Jewish law. In short, the wife faced all kinds of religious problems on account of her husband’s refusal to give the get. This situation is the well-known problem of the agunah, or “chained woman,” which many Jewish groups have been trying to solve within the boundaries of Jewish divorce law.

The wife brought an action in the bet din, the Jewish court, seeking its aid in obtaining the get. Note that there was no prenuptial agreement to arbitrate, let alone to arbitrate in the bet din. The husband refused to participate, arguing that the wife had waived her right to go to the bet din by bringing the civil action for divorce. The bet din ruled that the issue of waiver was itself an issue that had to be decided by the bet din. The husband still refused to participate and was declared a “Rabbinical Court evader” (which has various bad effects on the evader’s standing in the Jewish community, but is not akin to a default judgment).

In the civil case, the wife asked the court to award spousal support in the amount of $2,000 per month “until such time as the [husband] removes barriers to the [wife’s] remarriage and gives the wife] a ‘standard’ and ‘unconditional’ Jewish Divorce, or Get.”
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Water Splash v. Menon: Two Briefs

The first two briefs are on file in Water Splash v. Menon, the Supreme Court case on the interpretation of Article 10(a) of the Hague Service Convention. First is the petitioner’s brief, of course, and there’s also an amicus brief from the United States in support of the petitioner’s view.
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A Day of Shame and a Day of Pride

Friday was a day for Americans to be ashamed of our government. We’re a nation of immigrants and a nation of refugees. Except for the Native Americans, all of us came here from somewhere else and many of us came here to escape war and religious persecution. And we say we’re a moral people and a religious people. The Pilgrims’ journey from Europe to the New World; African Americans’ journey from slavery to emancipation to civil rights; the Jews’ and other religious minorities’ escape from Europe to America in the nineteenth and twentieth centuries—our story is the story of the Exodus and the Promised Land. It’s hard to write about this without lapsing into cliche, but what can we do except remind President Trump and his Republican enablers:
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Germany’s Position on Pre-Trial Discovery Softens!

Peter Bert, of Taylor Wessig, with important developments from Germany on execution of requests under Article 23 of the Hague Evidence Convention. This is cross-posted at his blog, Dispute Resolution in Germany.

You read it here first, back in 2013, but at the time with a question mark, and then again in 2014 and 2015. Finally, 2017 is the year it is actually going to happen: Germany is about to change its approach to discovery of documents under the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, commonly known as the Hague Evidence Convention. The bill that would remove Germany’s reservation pursuant to Article 23 of the Convention1 has been introduced into Parliament. It passed the Upper Chamber (Bundesrat) late last year without any objections.
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“American Carnage:” President Trump’s Inaugural Address

Lee surrenders to Grant at Appomattox
The Surrender at Appomattox

The phrase “American carnage,” until now, would have evoked for me the Civil War, the great contest between the North and the South that led to the deaths of more than 750,000 Americans, Northerners and Southerners, blacks and whites. Near the end of the war, Abraham Lincoln, by then aged almost beyond recognition by the stress of leadership during the crisis, delivered his great second inaugural address. It was clear by March 1865 that the war was won—Lee surrendered to Grant a month later. And the mood in the Union was triumphant: “Mine eyes have seen the glory of the coming of the Lord,” and all that.
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Lago Agrio: What’s Left For Trial, And What’s Next In Canada?

Yesterday I promised to take a look at the defenses to enforcement of the Ecuadoran judgment that remain for trial in Ontario. Here is an overview.

Which Defenses Are Left?

The LAPs’ counsel conceded that the claim that the Zambrano judgment was ghostwritten by the LAPs’ lawyers is a permissible defense. The defense could arise on any one of a number of theories: judgments obtained by fraud; judgment obtained in an unfair process; or judgments contrary to Canadian concepts of fundamental justice. The details are not quite the same as they would be in an American court—apparently in Canada a biased court is said to lack jurisdiction. But in any event, the defenses relating to the ghostwritten judgment are in.

Chevron’s second jurisdictional defense, which we would call a personal jurisdiction defense, is also in. The defense here is that Chevron Corp. never did business in Ecuador, didn’t waive its objection to personal jurisdiction (didn’t “attorn”, as the Canadians like to say), and had no connection with Ecuador. This motion is closely related to the corporate separateness motion—it focuses on whether the LAPs went after the right entity.
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Read more about the article Lago Agrio: Ontario Superior Court Rules LAPs Cannot Execute The Ecuadorian Judgment In Canada
Credit: Julien Gomba (CC BY)

Lago Agrio: Ontario Superior Court Rules LAPs Cannot Execute The Ecuadorian Judgment In Canada

As expected, the Ontario Superior Court has rejected the Lago Agrio plaintiffs’ attempt to seize the assets of an indirect Chevron subsidiary, Chevron Canada Ltd., to satisfy the multi-billion dollar judgment they obtained against the ultimate parent, Chevron Corp., in Ecuador. The court found no basis on which the assets of the indirect subsidiary could be reached on execution (the only tricky part here, in my view, is whether the shares of an indirect subsidiary can be reached, but really that’s not so tricky), and it found no basis for corporate veil-piercing. The practical implication is that barring a successful appeal, the Lago Ario plaintiffs will not be able to collect on their judgment in Canada. (The decision left over the possibility that another Chevron entity could be added to the case, but it is difficult to see why the outcome would be different for that entity than it was for Chevron Canada Ltd.).

The plaintiffs seem to think that equity requires a different result, but in order to make that argument, they have to ignore the whole course of the proceedings in the United States. Remember that they could have sought recognition of the Ecuadoran judgment in the United States, where Chevron Corp., the judgment debtor, has plenty of assets, but if I recall right, they made a decision not to do so. And they then were found to have obtained the judgment in Ecuador by fraud, which prevents them from seeking recognition in the United States now even if they wanted to. They say that equity requires courts in third countries to ignore corporate separateness to allow them to recover, but in light of what happened in New York, where’s the equity in that?
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The Adelson-O’Keeffe Libel Suit Settles

Sheldon Adelson
The thin-skinned Sheldon Adelson. Credit: Bectrigger

I’ve written several times about the Hong Kong libel suit brought by the thin-skinned Sheldon Adelson against Wall Street Journal reporter Kate O’Keefe, who wrote an article describing Adelson as “foul-mouthed.” The case gave rise to some § 1782 litigation in which O’Keeffe sought (and received) permission to take discovery from people who, she said, could provide evidence of the truth of what she had written. I don’t know whether the § 1782 discovery led to useful information, but in any event, the case has now been settled.
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President Trump and the Unwritten Constitution

Thomas Paine
Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.

If there’s one thing the election of Donald Trump has shown, it’s the strength of our formal political institutions. Do you disagree? Consider that in many states at many times in history, a democratically elected person so manifestly unfit for office would not have been allowed to take office. Yet there is no real risk of the American “deep state” carrying out a coup d’état or otherwise preventing Mr. Trump’s inauguration later this week. Once our formal constitutional process for election of the President concluded on January 6 (when Congress certified the electoral vote tally), that was that. We should be enormously proud of the strength of our formal institutions.

So if, when Representative John Lewis said, a few days ago, “I don’t see this President-elect as a legitimate president,” he meant that Mr. Trump was not validly elected, then he was clearly and dangerously in the wrong. His comment would be dangerous in the same way that birtherism, the view that President Obama was constitutionally ineligible to be President because he was not a natural-born citizen of the United States, was dangerous: both views undermine confidence in the formal constitutional mechanisms that have allowed us to prosper for more than two centuries.

But maybe Representative Lewis had something else in mind. Maybe he didn’t mean that Mr. Trump’s election somehow violated the written constitution, but that his actions before and after election have violated the unwritten constitution. Maybe the phrase is a little misleading. The unwritten constitution is not the law. It’s the norms, expectations, and traditions that let the government work. Every country has an unwritten constitution in this sense.

How could we make sense of Rep. Lewis’s comment if this second reading is right? Here are some thoughts.
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