Online Workshop Comment: The Future Impact of Sosa

[Opinio Juris note: We are very pleased that Professor Beth Stephens of the Rutgers University School of Law at Camden, a leading scholar of the Alien Tort Statute, has offered to provide a reaction to the Bradley-Goldsmith-Moore Article and we post her thoughts in full below]

Ten years after publication of their first attack on the “modern position,” Professors Bradley and Goldsmith, now joined by Professor Moore, continue to undermine the strength of their argument by opposing exaggerated (and simplistic) categories – “the modern position” and the “revisionists.” Elsewhere, they acknowledge that the group they lump together as the modernists includes a range of views about the modern import of customary international law. One such view is amply supported by the Sosa decision: customary international law is a source of federal common law to be applied in appropriate cases. That is not to say that it is incorporated in toto into federal common law. But it does signify that it can be relied upon by the federal courts in a range of situations (some of which they identify in their article), that it is federal (not state) law, and that disputes about its interpretation raise federal questions.

That said, I’m more interested at the moment in their interpretation of the impact of Sosa on the ongoing Alien Tort Statute litigation. Two points here: First, they conclude that Sosa is a rejection of much of Filartiga and its progeny only by misinterpreting those cases. The Filartiga line of cases was a remarkably cautious set of decisions. The standard put forth by Sosa – claims must be “accepted by the civilized world” and “defined with…specificity” – comes directly from Filartiga, which required that claims “command the ‘general assent of civilized nations’” and be capable of “clear and unambiguous” definition. The cases use virtually identical language because both draw directly from Paquete Habana. In practice, application of this standard pre-Sosa led to the dismissal of most ATS claims, many of them for failure to state an international law violation that met its exacting requirements. But the standard also permitted a handful of important cases to proceed against defendants accused of truly egregious human rights abuses.

Second, their discussion of the application of Sosa to the current debate about corporate aiding and abetting liability is surprisingly thin. Step back for a minute. In what legal system do we hold liable the person who shoots the gun, but not the person who buys it and hands it to him, loaded and ready to shoot? U.S. and international courts and commentators have recognized this consistently, from the 18th century (see Blackstone’s discussion of accessories to piracy, for one example) to the 21st century (the administration recognized this in the context of a civil statute imposing liability for terrorist acts, urging the courts to interpret the statute to include aiding and abetting liability). Whether viewed as a matter of federal common law or widely accepted international law, complicity liability is surely part of the “tort” encompassed by the ATS. Finally, some disagreement about the standard to define aiding and abetting liability is not fatal: The paradigm case relied upon by Sosa to define piracy, U.S. v. Smith, recognized “a diversity of definitions,” but held that agreement about the core of the definition – “robbery, or forcible depredations upon the sea, animo furandi” – was sufficient.