This was the email subject line from a former student who sent me a link to the recently released dissenting opinion (available here) in Sarei v. Rio Tinto — a case alleging human rights violations in the context of the Papua New Guinea civil war.  There was no majority opinion, just an order referring the case to mediation.

Judge Kleinfeld saw reason to file a separate opinion, dissenting from the reference to mediation.

One part of his dissent revisits long-standing skepticism about the wisdom of settlement efforts in significant cases.  I regret that he does not cite Jeff Seul to accompany his citation to Owen Fiss.  Frankly, if this were all there were to the opinion, I’d not find it novel enough to mention here.

What Judge Kleinfeld does spend considerable time on is the question of whether the court even has jurisdiction over the Alien Tort Claims Act case.  And that raises interesting questions about case management and the timing of judicial orders referring cases to mediation.

The matter was referred to Judge Leavy of the 9th Circuit — a mediator for whom I have the highest respect — and I’ll be interested to see how this case plays out.

MM