{"id":802,"date":"2011-04-28T12:00:43","date_gmt":"2011-04-28T16:00:43","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=802"},"modified":"2015-10-02T15:57:40","modified_gmt":"2015-10-02T15:57:40","slug":"sovereign-immunity-case-raises-question-of-courts-lawyering-for-parties","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2011\/04\/28\/sovereign-immunity-case-raises-question-of-courts-lawyering-for-parties\/","title":{"rendered":"Sovereign Immunity Case Raises Question of Courts Lawyering for Parties"},"content":{"rendered":"

Michael Stephan<\/em><\/p>\n

Last Thursday, the Ninth Circuit decided\u00a0Tobar v. United States<\/a><\/em>, a case dealing with sovereign immunity in the admiralty law context.\u00a0 At first glance,\u00a0Tobar<\/em>\u00a0appears to be a relatively straightforward decision about whether the United States has waived sovereign immunity from a suit brought by Ecuadorian fishermen who had their boat temporarily seized by the United States Coast Guard.\u00a0 A close look at\u00a0Tobar<\/em>, however, reveals a very interesting question at issue: To what extent should courts investigate an issue or argument\u00a0sua sponte\u00a0<\/em>when the party benefiting from that investigation failed to persuasively raise the issue or argument?\u00a0\u00a0More colloquially: To what extent should courts lawyer for parties?<\/span>\u00a0(Yes, I\u2019m using\u00a0\u201clawyer\u201d as a verb<\/a>.)<\/p>\n

The facts of\u00a0Tobar<\/em>\u00a0are simple.\u00a0 The United States Coast Guard stopped an Ecuadorian fishing boat near the Galapagos Islands, having suspected it of smuggling drugs.\u00a0 The Coast Guard boarded the boat, searched it, and towed it to Ecuador for further investigation.\u00a0 The Coast Guard eventually concluded that the boat contained no contraband, and no charges were filed.\u00a0 The crew members then sued the United States for roughly $5 million in damages for \u201cdestruction of personal property, loss of their catch, loss of the use of the vessel, and public ridicule,\u201d among other things.<\/p>\n

<\/p>\n

The United States moved to dismiss on the grounds that it had not waived sovereign immunity and thus was immune from suit.\u00a0 The plaintiffs argued to the contrary by citing the\u00a0Public Vessels Act<\/a>, which waives sovereign immunity for certain types of maritime torts if the national government of the foreign plaintiff would, in similar circumstances, allow U.S. citizens to sue it in its courts.\u00a0 The district court found that the Ecuadorian crew members failed to establish the reciprocity requirement\u2014i.e., that Americans can sue Ecuador in similar circumstances\u2014and the Ninth Circuit \u201cagree[d].\u201d<\/p>\n

But the Ninth Circuit vacated the decision anyway.\u00a0 The Ninth Circuit panel explained that the district court had the discretion to conduct its own inquiry into the reciprocity requirement, even if the plaintiffs failed to prove reciprocity themselves.\u00a0 The panel noted statutory and precedential authority stating that the district court \u201cmay ascertain\u201d and \u201cmay consider\u201d its own research.\u00a0 Because the district court did not conduct its own investigation into reciprocity, the panel believed that the district court was unaware of its discretion to investigate, and the decision was vacated.<\/p>\n

It\u2019s worth noting that the district court had discretion to investigate the reciprocity issue,\u00a0or not<\/em>.\u00a0 As the Ninth Circuit noted, the district court \u201ccould\u201d research Ecuadorian law and \u201cmay\u201d consider its own findings.\u00a0 And although the relevant laws use the word \u201cmay\u201d\u2014thus indicating permission to do something\u2014the Ninth Circuit opinion reads more as if the laws use the word \u201cmust\u201d\u2014thus indicating an obligation to do something.<\/p>\n

This pseudo obligation raises the question of how much work, if any, a court should do for an unpersuasive party.\u00a0 Should courts take a completely hands-off approach, letting the parties act as the sole investigators of their claims?\u00a0 Should courts be required to look beyond parties\u2019 arguments and inquire into the (sometimes foreign) laws that govern a case?\u00a0 Or should we settle on some middle ground, such as giving courts the discretion to conduct their own investigations?\u00a0 Discretion was the rule in the district court, but the\u00a0Tobar<\/em>\u00a0panel seems to desire a slightly more generous bench.<\/p>\n","protected":false},"excerpt":{"rendered":"

Michael Stephan Last Thursday, the Ninth Circuit decided\u00a0Tobar v. United States, a case dealing with sovereign immunity in the admiralty […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-802","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-cW","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/802","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=802"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/802\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=802"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=802"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=802"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}