Last month, a Haitian judge ordered [JURIST report] the release of one of the last two US missionaries out of a group of 10 who were arrested following the January 12 earthquake [JURIST news archive] in connection with their attempt to take 33 children across the Haitian border into the Dominican Republic. The judge had announced [JURIST report] in February that the two remaining missionaries would also be released after the other eight members of the missionary group affiliated with the Central Valley Baptist Church [church website] of Idaho and the New Life Children's Refuge Charity [BBC profile] were released [JURIST report] earlier that month. Haitian authorities originally charged [JURIST report] each of the 10 missionaries in February with one count of kidnapping and one count of criminal association, asserting that many of the children were not orphans.

In Rent-A-Center v. Jackson [oral arguments transcript, PDF], the court heard arguments on whether a district court is required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (FAA) [materials] is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this "gateway" issue to the arbitrator for decision. The Ninth Circuit held [opinion, PDF] that that the district court was required to determine whether the arbitration agreement was unconscionable. Counsel for the petitioner argued:

The agreement between Antonio Jackson and Rent-A-Center should be enforced as written. There is no statutory impediment to the enforcement of the clear and unmistakable agreement that gives the arbitrator exclusive authority to decide Jackson's challenge to enforceability, nor is there any language in the Federal Arbitration Act that would prohibit the court from making the determination - prohibit the arbitrator from making the determination of Jackson's challenge to unconscionability.

We disagree with the decision of the sharply divided 6-5 court to uphold portions of the certification order, and are considering our options, including seeking review from the Supreme Court. It is important to remember the court did not address the merits of this case. The court reiterated, "our findings relate only to class action procedural questions; we neither analyze nor reach the merits of Plaintiffs' allegations of gender discrimination." The court further noted that the trial court "has the discretion to modify or decertify the class."

The Ninth Circuit granted an en banc rehearing [JURIST report] to Wal-Mart last year. According to the order, a majority of the Ninth Circuit judges, excluding the three judges who heard an earlier appeal [JURIST report] in which class certification was upheld, voted in favor of an en banc hearing. A three-judge panel of the Ninth Circuit originally ruled against Wal-Mart's appeal of the class certification in February 2007, then issued a new opinion [text, PDF] in conjunction with its decision in December 2007. Wal-Mart appealed [JURIST report] to the Ninth Circuit in 2005, arguing that the six lead plaintiffs were not typical or common of the class. Wal-Mart also objected to the size of the class certified, which it says would violate its due process rights. Wal-Mart argued that its stores operate independently and should be sued individually, while plaintiffs' lawyers countered that individual lawsuits would be impractical. The district court also rejected Wal-Mart's claim that the class size was "impractical on its face" and approved a statistical formula for paying damages if discrimination is proven.

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Monday in two cases. In Hardt v. Reliance Standard Life Insurance Co. [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether whether § 502(g)(1) of the Employee Retirement Income Security Act (ERISA) [materials] provides a district court discretion to award reasonable attorney's fees only to a prevailing party, and whether a party is entitled to attorney's fees when she persuades a district court that a violation of ERISA has occurred, successfully secures a judicially-ordered remand requiring a redetermination of entitlement to benefits, and subsequently receives the benefits sought on remand. The US Court of Appeals for the Fourth Circuit held [opinion, PDF] that § 502(g)(1) provides a district court discretion to award reasonable attorney's fees only to a prevailing party. Counsel for petitioner argued that she "is eligible for a fee award under section 502(g)(1) of ERISA by proper application of this Court's established fee standards under any test this Court has previously established." Counsel for the US government argued as amicus curiae on behalf of petitioner. Counsel for the respondent argued that "the Petitioner must demonstrate some success on the merits, and under Rule 54 she must specify the judgment entitling her to an award."

In Rent-A-Center v. Jackson [oral arguments transcript, PDF], the court heard arguments on whether a district court is required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (FAA) [materials] is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this "gateway" issue to the arbitrator for decision. The Ninth Circuit held [opinion, PDF] that that the district court was required to determine whether the arbitration agreement was unconscionable. Counsel for the petitioner argued:

The agreement between Antonio Jackson and Rent-A-Center should be enforced as written. There is no statutory impediment to the enforcement of the clear and unmistakable agreement that gives the arbitrator exclusive authority to decide Jackson's challenge to enforceability, nor is there any language in the Federal Arbitration Act that would prohibit the court from making the determination - prohibit the arbitrator from making the determination of Jackson's challenge to unconscionability.

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday affirmed [opinion, PDF] certification of the largest class action lawsuit in US history against Wal-Mart [corporate website] for allegedly discriminating against female employees. The 6-5 en banc ruling upholds a previous decision [JURIST report] by the Ninth Circuit that the lawsuit could go to trial despite the large size of the class. The case was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart's nationwide policies violate Title VII [text] of the Civil Rights Act of 1964, alleging that women employed by Wal-Mart are paid less than men in comparable positions and wait longer for management promotions than men, despite their higher performance ratings and seniority. In a statement [text], Wal-Mart said that they are going to proceed by reviewing their options:

We disagree with the decision of the sharply divided 6-5 court to uphold portions of the certification order, and are considering our options, including seeking review from the Supreme Court. It is important to remember the court did not address the merits of this case. The court reiterated, "our findings relate only to class action procedural questions; we neither analyze nor reach the merits of Plaintiffs' allegations of gender discrimination." The court further noted that the trial court "has the discretion to modify or decertify the class."

In February, a Chinese court sentenced [JURIST report] human rights activist Tan Zuoren to five years in prison on subversion charges after he documented the lethal consequences of substandard construction in the Sichuan province's 2008 earthquake [BBC backgrounder], which left some 90,000 dead. A Chinese court sentenced another earthquake activist [JURIST report], Huang Qi, to three years in prison in November on the charge of illegally holding state secrets. Huang was a critic of the Chinese government's handling of the 2008 disaster. After the quake, he posted articles online criticizing the government's response and talked to foreign media outlets about how some children's deaths were the result of poorly-built schools. Amnesty International issued a statement [text] in July urging China to drop the charges against Huang and release him from custody.

In January, the UK government introduced a scheme [JURIST report] for compensating victims of overseas terrorism, using a plan that closely mirrors that used to compensate families of the July 2005 bombings [BBC backgrounder]. In November, London police reached a settlement [JURIST report] with the family of a man mistaken for one of the terrorist suspects involved in the bomb plot. In April 2008, the UK Court of Appeal rejected the appeal [JURIST report] of four men found guilty of plotting the London attacks. The 2005 bombings targeted three trains and one bus, killing 52 people and injuring at least 770.

[N]either the Statute nor the Rules, contrary to the Prosecution's assertion, draws a distinction as to the way evidence shall be assessed before a Trial Chamber and a Pre-Trial Chamber. The free assessment of the evidence presented by a party is, pursuant to the Statute, a core component of the judicial activity both at the pre-trial stage of a case and at trial. ... In light of the above, the proposition put forward by the Prosecution, namely that the Chamber should have applied a different standard to the assessment of the evidence at the confirmation of the charges stage, is without any legal basis.

The ICC declined to confirm charges against Abu Garda in February, a ruling that came after a preliminary hearing [JURIST reports] in October, during which the prosecution alleged that Abu Garda controlled the Justice and Equality Movement [official website, in Arabic]. The charges against Abu Garda stem from a series of attacks in 2007 that resulted in the death of 12 African Union Mission in Sudan soldiers. Abu Garda first appeared [JURIST report] before the ICC on the charges in May 2009, and is the first individual involved in the situation in Darfur to appear before the court.

[JURIST] Chinese authorities have arrested a prominent Tibetan writer after he signed a letter critical of the Chinese government's relief efforts following the recent earthquake in the western Qinghai [Xinhua backgrounder] province, a family friend said Monday. Tra Gyal, who writes under the pseudonym Zhogs Dung, was reportedly arrested [AP report] while working at the Nationalities Publishing House in the provincial capital Xining. Tra Gyal helped organize private donations [Times report] for those left homeless in the remote Yushu county, a Tibet Autonomous Prefecture, by asking Tibetans not to send donations through official channels but rather to travel to the county themselves to guarantee their donations reached those in need. It is unclear whether Tra Gyal's detention is related to his criticism of the earthquake relief efforts.

In February, a Chinese court sentenced [JURIST report] human rights activist Tan Zuoren to five years in prison on subversion charges after he documented the lethal consequences of substandard construction in the Sichuan province's 2008 earthquake [BBC backgrounder], which left some 90,000 dead. A Chinese court sentenced another earthquake activist [JURIST report], Huang Qi, to three years in prison in November on the charge of illegally holding state secrets. Huang was a critic of the Chinese government's handling of the 2008 disaster. After the quake, he posted articles online criticizing the government's response and talked to foreign media outlets about how some children's deaths were the result of poorly-built schools. Amnesty International issued a statement [text] in July urging China to drop the charges against Huang and release him from custody.

[JURIST] Lawyers for victims of the July 7, 2005 London transit bombings [JURIST news archive] argued on Monday in the Royal Courts of Justice that UK authorities possessed information that could have helped them prevent the attacks. The theory for the case is built on intelligence that British security service MI5 [official website] and the London police had uncovered about the four suicide bombers prior to the attacks. Counsel for bereaved families argued that the UK government breached obligations to its citizens under Article 2 of the European Convention on Human Rights [text], which provides for the right to life. MI5 and the Home Secretary [official website] argued in response to the prosecution's arguments that the matter has already been investigated in the Parliamentary Intelligence and Security Committee (ISC) [official website] and that the intelligence could undermine law enforcement efforts if made public. The hearing is scheduled to last for three days.

In January, the UK government introduced a scheme [JURIST report] for compensating victims of overseas terrorism, using a plan that closely mirrors that used to compensate families of the July 2005 bombings [BBC backgrounder]. In November, London police reached a settlement [JURIST report] with the family of a man mistaken for one of the terrorist suspects involved in the bomb plot. In April 2008, the UK Court of Appeal rejected the appeal [JURIST report] of four men found guilty of plotting the London attacks. The 2005 bombings targeted three trains and one bus, killing 52 people and injuring at least 770.

[JURIST] The International Criminal Court (ICC) [official website] has rejected [judgment, PDF; press release] the prosecutor's petition to appeal the court's February decision [judgment, PDF] declining to confirm the charges against Darfur rebel chief Bahr Idriss Abu Garda [case materials; JURIST news archive]. In a decision released Friday, the chamber recalled its earlier determination that the evidence presented by the prosecution was not of the appropriate severity to continue the proceedings against Abu Garda and found that the prosecution's petition did not meet the requirements for an appeal. The prosecutor argued in the appeal that the court had applied a stricter evidentiary standard [Rules of Evidence, PDF] in the Pre-Trial Chamber than it should have employed. In denying the appeal, the ICC said:

[N]either the Statute nor the Rules, contrary to the Prosecution's assertion, draws a distinction as to the way evidence shall be assessed before a Trial Chamber and a Pre-Trial Chamber. The free assessment of the evidence presented by a party is, pursuant to the Statute, a core component of the judicial activity both at the pre-trial stage of a case and at trial. ... In light of the above, the proposition put forward by the Prosecution, namely that the Chamber should have applied a different standard to the assessment of the evidence at the confirmation of the charges stage, is without any legal basis.

Jordan has employed a series of legal reforms to address the concerns of many human rights groups. Last year, Human Rights Watch (HRW) [advocacy website] urged Jordan to restore its rule of law [JURIST report] by ending extrajudicial detentions of crime victims, personal enemies, and persons freed by the courts. Per the 1954 Crime Prevention Law [DOS backgrounder], which is currently in effect, government officials have the power to order administrative detentions on mere suspicions of improper behavior rather than on the showing of evidence that a crime has been committed. HRW asserted that the formulation and application of Jordan's Crime Prevention Law violates international standards as well as Articles 7 and 8 of the Jordan Constitution [text], which states that "Personal freedom shall be guaranteed," and that "No person may be detained or imprisoned except in accordance with the provisions of the law." The HRW report alleges that Jordan officials frequently circumvent the judicial system under which potential defendants are afforded due process and also that the subjects of such extrajudicial detentions are often the victims of crimes rather than the perpetrators themselves.

In Ortiz v. Jordan [docket; cert. petition, PDF], the court will decide whether a party may appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial. The US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] that, "although courts normally do not review the denial of a summary judgment motion after a trial on the merits, denial of summary judgment based on qualified immunity is an exception to this rule." There is a circuit split on this issue.

Also Monday, the court decided not to allow Michigan to reopen a longstanding controversy [backgrounder, PDF; JURIST report] with the state of Illinois seeking to close two waterways that allow invasive Asian carp to reach the Great Lakes. The court also refused to allow Michigan to open a new case on the issue.

The IHEC ordered a manual recount [JURIST report] of the ballots in Baghdad last week, following fraud allegations. The election commissioner for the IHEC informed the public that the Baghdad recount would begin immediately [Al Jazeera report], citing manipulation in voting stations. The State of Law coalition alleged fraud [JURIST report] after a preliminary count showed the Iraqiya coalition held a slight lead. In February, an Iraqi appeals panel ruled [JURIST report] that 28 of the 500 candidates previously banned due to allegations of ties to the Baath Party could stand in the election. The initial ban was characterized by the Iraqi government as illegal and was reversed [JURIST reports] when the panel acknowledged that it did not have to rule on all 500 candidates at once. This came as a reversal of a previous decision, where it held [WSJ report] that the candidates could stand in the coming elections, but would have to be cleared of the allegations against them before taking office.

[JURIST] French Justice Minister Michele Alliot-Marie [official profile, in French] and Jordan's King Abdullah II [official profile] met Sunday to discuss increasing cooperation [press release] between France and Jordan's judicial and legislative branches and strengthening the ties between the two countries. Alliot-Marie told reporters that France would send legal experts [AFP report] to Jordan to help strengthen its court system. Sunday's talks follow the protocol [Petra report] signed by France and Jordan last April to enhance the countries' legal cooperation. The protocol provides for the exchange of current legal and judicial releases and research highlighting the countries' judiciary, and underscores revisions of Jordan's current civil and criminal laws.

Jordan has employed a series of legal reforms to address the concerns of many human rights groups. Last year, Human Rights Watch (HRW) [advocacy website] urged Jordan to restore its rule of law [JURIST report] by ending extrajudicial detentions of crime victims, personal enemies, and persons freed by the courts. Per the 1954 Crime Prevention Law [DOS backgrounder], which is currently in effect, government officials have the power to order administrative detentions on mere suspicions of improper behavior rather than on the showing of evidence that a crime has been committed. HRW asserted that the formulation and application of Jordan's Crime Prevention Law violates international standards as well as Articles 7 and 8 of the Jordan Constitution [text], which states that "Personal freedom shall be guaranteed," and that "No person may be detained or imprisoned except in accordance with the provisions of the law." The HRW report alleges that Jordan officials frequently circumvent the judicial system under which potential defendants are afforded due process and also that the subjects of such extrajudicial detentions are often the victims of crimes rather than the perpetrators themselves.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in two cases. In Schwarzenegger v. Entertainment Merchants Association [docket; cert. petition, PDF], the court will decide whether the First Amendment [text] permits any limits on offensive content in violent video games sold to minors, and whether a state regulation for displaying offensive, harmful images to children is invalid if it fails to satisfy the exacting "strict scrutiny" standard of review. California Civil Code sections 1746-1746.5 [text] prohibit the sale of violent video games to minors under 18 where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors, and causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors. The US Court of Appeals for the Ninth Circuit affirmed [opinion, PDF; JURIST report] the district court's judgment permanently enjoining enforcement of the prohibition.

In Ortiz v. Jordan [docket; cert. petition, PDF], the court will decide whether a party may appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial. The US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] that, "although courts normally do not review the denial of a summary judgment motion after a trial on the merits, denial of summary judgment based on qualified immunity is an exception to this rule." There is a circuit split on this issue.

Also Monday, the court decided not to allow Michigan to reopen a longstanding controversy [backgrounder, PDF; JURIST report] with the state of Illinois seeking to close two waterways that allow invasive Asian carp to reach the Great Lakes. The court also refused to allow Michigan to open a new case on the issue.

[JURIST] The recount of votes cast in Baghdad province during the March 7 parliamentary elections [CEIP backgrounder; JURIST news archive] will be delayed a week, according to an official on Monday. The Independent High Election Commission (IHEC) [official website] will not begin the recount [Reuters report] until the review panel ordering the recount defines more precisely what a recount entails. Iyad Allawi [personal website, in Arabic; Al Jazeera profile], whose Iraqiya coalition garnered a slim two-seat lead over the State of Law [official website] coalition of incumbent Prime Minister Nouri al-Maliki [official website, in Arabic], threatened to reject the recount [NPR report] if it only includes Baghdad. Also on Monday, an IHEC review panel nullified [AP report] the votes of 52 candidates for alleged ties to Saddam Hussein's Baath Party [BBC backgrounder], including two candidates that had won seats in the Iraqi Council of Representatives [official website], at least one of which coming from Iraqiya. The uncertainty over the election results has jeopardized the US plan for withdrawal of combat troops by August, and has prompted the Obama administration to propose a coalition government [Independent report] between Maliki and Allawi, where each would hold the premiership for two years.

The IHEC ordered a manual recount [JURIST report] of the ballots in Baghdad last week, following fraud allegations. The election commissioner for the IHEC informed the public that the Baghdad recount would begin immediately [Al Jazeera report], citing manipulation in voting stations. The State of Law coalition alleged fraud [JURIST report] after a preliminary count showed the Iraqiya coalition held a slight lead. In February, an Iraqi appeals panel ruled [JURIST report] that 28 of the 500 candidates previously banned due to allegations of ties to the Baath Party could stand in the election. The initial ban was characterized by the Iraqi government as illegal and was reversed [JURIST reports] when the panel acknowledged that it did not have to rule on all 500 candidates at once. This came as a reversal of a previous decision, where it held [WSJ report] that the candidates could stand in the coming elections, but would have to be cleared of the allegations against them before taking office.

The TRC report also contained a list of "Most Notorious Predators" and a list of perpetrators of economic crimes, which includes the head of the legal association for the defense of former president Charles Taylor [JURIST news archive]. Taylor is currently on trial [case materials] before the Special Court for Sierra Leone [official website] sitting at The Hague. Taylor faces 11 counts [indictment, PDF] of crimes against humanity, violations of the Geneva Conventions [materials], and other violations of international humanitarian law stemming from a "campaign to terrorize the civilian population" of Sierra Leone [JURIST news archive].

Last week, Thai Prime Minister Abhisit Vejjajiva [official website; BBC profile] announced that he is prepared to negotiate with red shirt protesters once they cease their illegal conduct. Thai courts have recently issued arrest warrants [JURIST report] for several high-profile protesters, including high-ranking officials of the red shirt opposition, in connection with violent protests and an alleged break-in at Parliament [Bangkok Post report]. Internal divisions have been mounting steadily in Thailand since the 2006 ouster [JURIST report] of former prime minister Thaksin Shinawatra [BBC backgrounder; JURIST news archive], whose progressive policies engendered the support of the poor rural class that largely constitutes the reds today. The yellows, primarily consisting of the urban middle-class, considered Shinawatra, and as well as the reds, disloyal to the monarchy. Because of the mounting violence, Abhisit has imposed a state of emergency [JURIST report] in Bangkok and neighboring provinces.

[JURIST] Thailand's pro-government People's Alliance for Democracy Network [party website, in Thai; BBC backgrounder], known as "yellow shirts," called Monday for a declaration of martial law to quell the anti-government movement spearheaded by the United Front for Democracy against Dictatorship [party website, in Thai], or "red shirts." The statement comes after over a month of conflict in Bangkok [JURIST news archive] that has left more than 25 dead and nearly 1,000 injured in connection with increasingly violent anti-government protests. After an attack Sunday on a former premier's home left 11 people injured, the reds dug into their fortified bunker in Bangkok in anticipation of government retaliation. Yellow shirt representatives have said that if the government will not crack down on the reds, the group is prepared to take action itself.

Last week, Thai Prime Minister Abhisit Vejjajiva [official website; BBC profile] announced that he is prepared to negotiate with red shirt protesters once they cease their illegal conduct. Thai courts have recently issued arrest warrants [JURIST report] for several high-profile protesters, including high-ranking officials of the red shirt opposition, in connection with violent protests and an alleged break-in at Parliament [Bangkok Post report]. Internal divisions have been mounting steadily in Thailand since the 2006 ouster [JURIST report] of former prime minister Thaksin Shinawatra [BBC backgrounder; JURIST news archive], whose progressive policies engendered the support of the poor rural class that largely constitutes the reds today. The yellows, primarily consisting of the urban middle-class, considered Shinawatra, and as well as the reds, disloyal to the monarchy. Because of the mounting violence, Abhisit has imposed a state of emergency [JURIST report] in Bangkok and neighboring provinces.

[JURIST] Liberian Justice Minister Christiana Tah has said that a report [materials] issued by the Liberian Truth and Reconciliation Commission (TRC) [official website] will be reviewed by Liberian officials in order to determine if prosecutions for possible war crimes should proceed. The TRC report, issued last December, detailed crimes committed during Liberia's civil war [UNMIL backgrounder; BBC backgrounder], including the recruitment of child soldiers, the rape of women, as well as the death of more than 250,000 citizens. According to Tah, the committee reviewing the TRC report will be trying to determine who committed the most serious atrocities [Reuters report] so that prosecutions can proceed as quickly as possible. Some in Liberia are skeptical that the government will proceed with prosecutions based on the TRC report. One of the report's most controversial recommendations is a proposed 30-year ban [JURIST report] from holding office for those who supported the civil conflict, which could affect prominent leaders such as current President Ellen Johnson Sirleaf [BBC profile]. Skeptics contend it is unlikely that Sirleaf would support some of the recommendations while ignoring those that would have a direct impact on her political future. Supporters of the TRC report contend that prosecutions are necessary to achieving justice but warn that the process would be drawn out and that it could take up to 10 years before the trials could be held.

The TRC report also contained a list of "Most Notorious Predators" and a list of perpetrators of economic crimes, which includes the head of the legal association for the defense of former president Charles Taylor [JURIST news archive]. Taylor is currently on trial [case materials] before the Special Court for Sierra Leone [official website] sitting at The Hague. Taylor faces 11 counts [indictment, PDF] of crimes against humanity, violations of the Geneva Conventions [materials], and other violations of international humanitarian law stemming from a "campaign to terrorize the civilian population" of Sierra Leone [JURIST news archive].