Tag Archives | Whale Wars

Reality Law

What do Whale Wars and Sister Wives have in common? The activities and participants in both are the subjects of fairly novel federal court decisions. Most recently, the polygamy show yielded Brown v. Burnham, which we’ve written about extensively here. The whale show yielded Institute of Cetacean Research v. Sea Shepherd Conservation Society, dealing with whether the environmentalists’ tactics could be classified as piracy, which we’ve also addressed previously.

Here’s a question: what other reality shows have resulted in interesting federal litigation? A minimum condition would be that the litigation concern the topic or substance of the show, not contractual and other kinds of production-related disputes among the participants. Do reality shows make for good law? Sounds like a panel for the AALS in two weeks…

UPDATE: It is fairly trivial, but the families of the Mob Wives face federal charges regularly. It does not meet the criteria above, however, because they do not result in interesting rulings. [...]

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Yes, Sea Shepherd Engages in Piracy Under International Law

The Ninth Circuit was right to reverse the district court in the Sea Shepherd Case. The district court erroneously read “private ends” as excluding political ends like saving the whales. But the “private ends” requirement has never been understood to inject a subjective element to the piracy inquiry. It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

The strongest refutation of the district court’s reasoning are opinions finding that attacks by rebel or guerilla groups that had not become recognized belligerents (i.e., de facto state actors) constitute mere piracy. See The Ambrose Light, 25 F. 408
(D.C. N.Y. 1885). Indeed, Confederate privateers would have been treated as pirates had it not been for a political (i.e., executive) decision not to do so. Obviously no such decision has been made in favor of Sea Shepard, which is essentially waging “private war” – or rather, “private Whale Wars.”

Indeed, Judge Story in The Marianna Flora (1822) made it clear there not be any intent for pecuniary gain:

[N]or do I conceive that it is indispensable

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The Sea Shepherd Decision: Sailing Ahead of Kiobel

The Ninth Circuit’s reversal of a district court decision ruling that actions by Sea Shepherd against Japanese whaling vessels could not constitute piracy because they did not satisfy the “private ends” requirement is obviously correct. (Institute of Cetacean Research v. Sea Shepard Conservation Society.) The district court’s analysis always struck me as strange and disconnected with piracy practice and caselaw. In this post, I’ll discuss the relevance of the decision to Alien Tort Statute issues, and in a subsequent one, I’ll examine the merits.

The Japanese whalers brought suit under the ATS, and the case is notable in two other ways relevant to the Supreme Court’s upcoming decision in Kiobel. First, it shows that the ATS can have both liberal and conservative uses, as I’ve noted before. It is true that there have been few conservative uses, but there weren’t any uses of any kind for 200 years, until Filartiga inspired a wave of human rights litigation. Thus a ruling narrowing the ATS in Kiobel cannot be simply interpreted as “conservative” decision.

Second, it shows that even the narrowest possible ruling in Kiobel – finding the statute to not apply on foreign territory or create corporate liability – cannot be said to close the door to all ATS litigation, or read the statute so narrowly as to make it a dead letter. This case, for example, would clearly survive the narrowest possible post-Sosa view of the ATS.

I am less sure that the ATS applies to piracy at all, though the Ninth Circuit was safe to assume this, as it was assumed by both parties and the Supreme Court in Sosa. I have criticized that that assumption:

It is not clear that Sosa was right about Congress’s belief that the ATS would be a vehicle for piracy suits. Although

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