As the Chief Justice announced at the start of today’s session of the Supreme Court, October Term 2011 is concluded; October Term 2012 has commenced.

And what a commencement it was. Stars of the Supreme Court bar flooded into One First Street N.E. to welcome the start of the term — and also because of the massive amount of corporate amicus work brought on by Kiobel v. Royal Dutch Petroleum.

Tom Goldstein, celebrating the ten-year anniversary of the invaluable SCOTUSblog, parked himself at the front of the lawyer’s lounge, resplendent in a pink shirt and pink tie — like Regis Philbin’s wardrobe, but in a way that worked for a lawyer.

There were two cases up for argument today. One involved whether you can sue a company with a U.S. subsidiary for very bad things it does in cahoots with the Nigerian government. The other was over the scope of federal admiralty jurisdiction….

On the way into the building, I asked Nina Pillard, a Georgetown law professor and former assistant to the solicitor general, whether she was there for the admiralty case. She said no, but, for sheer entertainment value, boy was that the wrong call.

When Is A Thing Floating In Water A Boat?

Fane Lozman lived on a “water home” (I’m choosing the term carefully), a square bit of construction that floated in a marina in Riviera Beach, Florida. The “water home” was made of plywood, had French doors on three sides, and was only moved once, when it was towed to avoid a hurricane.

Lozman was not the most responsible citizen of Riviera Beach. He owed the city money for not paying his dock fees, so they asserted a maritime lien over his “water home.”

The fight between Lozman and the city of Riviera Beach, Florida, wound up before the Supreme Court, in today’s second argument.

To back up quickly: federal courts have jurisdiction over boats or vessels as a function of maritime jurisdiction. It’s in the constitution at Article III, Section 2. So, if a “water home” is a boat, you can sue about it in federal court. If it’s not, then there’s no federal jurisdiction.

Federal jurisdiction and the ability to secure a maritime lien on Fane Lozman’s home, then, turn on whether a “water home” is a boat.

Jeffery Fisher, a veteran of the Supreme Court bar, defended Lozman’s claim that his “water home” is not a boat. Fisher is the man who brought down the sentencing guidelines in Blakely and Booker. He reinvigorated the Confrontation Clause in Crawford. At a talk I heard in Miami, he referred to the most important language in a Supreme Court opinion as the “moneyshot.”

And now he’s the go-to Supreme Court advocate for derelict non-boat-owning water-dwellers everywhere.

Fisher’s position was simple: this isn’t a boat because it doesn’t have as a primary function moving people or things.

The question of when a floating thing is a boat animated many members of the Court.

“Is an inner tube a vessel?” asked the Chief Justice.

No, answered the city’s lawyer — David Frederick, of Kellogg Huber — because your bottom is underwater when you’re in one.

“Okay, is an inflatable raft a vessel?” parried the Chief.

The city’s lawyer conceded that in his view an inflatable raft is probably a vessel.

David Frederick is an experienced practitioner, so perhaps he knows better, but, to my mind, if your argument allows the federal courts to assert jurisdiction over an inflatable raft, you should reconsider your argument.

Justice Breyer was inspired by the hypotheticals. Could a Styrofoam couch be a vessel? Or a really light cup?

The city’s attorney said that a vessel has to be able to transport people or things.

Justice Kagan asked if you taped a few pennies to an inflatable raft if that would transform it into a vessel. Justice Breyer wanted to know if a cushion on a floating couch made it a vessel.

What if someone threw a log from a beach into the water and sat on it? Is the log a vessel if there’s a person small enough to float on it?

This wore on for a while. The Chief seemed to reflect with despair on how long life tenure can be.

The Justice most excited by this argument, oddly, was Justice Thomas. He was reading from one of the briefs, bouncing up and down, and talking to Justices Scalia and Breyer when they weren’t asking questions. The brief had a fold out picture of the boat-or-not-a-boat that he was pointing at.

He seemed so excited I thought he was going to ask a question. Alas, he soon settled back into his chair. “Here is liberty deep-kissing torpor.”

It’s not completely clear where this will go, but if I owned a house “boat,” I wouldn’t worry too much about someone attaching a maritime lien to it. Though a floating couch may be a different story.

Human Rights, Assaults on Ambassadors, And The Limits of Piracy

The Court’s other argument this morning, kicking off OT 2012, involved the interpretation of the Alien Tort Statute. The case is Kiobel v. Royal Dutch Petroleum.

To be frank, I suspect just about every media outlet’s coverage from today will focus on this case, so you’ll not lack for news. I want to share with you two questions that came out of the oral argument:

(1) If a French citizen attacks a German ambassador in Switzerland, then flees to America, can he be sued in a federal court?

(2) Was Hitler a Pirate?

The resolution of these important questions — as well as whether floating couch litigation will flood our federal courts — will come in a few months.


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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