Online Workshop Response

by David Moore

Thanks to Beth and Julian for their insightful comments. Let me respond to a few of them. Beth suggests that the “modern position” and “revisionist” categories are exaggerated and simplistic, apparently because she perceives that no CIL qualifies as federal common law under the revisionist view while all CIL qualifies as common law under the modern position view. Some adherents to the modern position, she asserts, stake out the “middle ground,” not captured by these categories, in which CIL is a source of federal common law in appropriate cases. An “as appropriate” approach provides no theory of how or why CIL becomes federal common law, as the other approaches do, and so would not seem to qualify as a separate category (read theory), or at least as one that could support meaningful debate. More fundamentally, Beth’s argument misperceives the nature of the modern position versus revisionist debate. The debate is not about how much CIL qualifies as common law. If it were, discussing the debate in all or nothing terms would be exaggerated and simplistic. The debate is about how CIL qualifies as federal common law. The modern position asserts that CIL is, by historical pedigree or precedent, federal common law. The revisionist view (and Sosa) maintains that CIL becomes federal common law consistent with the requirements and limitations of post-Erie common law. There are, as Beth asserts, a range of situations (many detailed in the Article) in which these requirements and limitations are met and in which CIL is applicable as federal common law. This “middle ground,” however, emerges consistent with the revisionist explanation of how CIL becomes federal law. Thus, at least the middle ground Beth adopts fits comfortably within the categories on which the Article focuses. (Incidentally, the Article does discuss an intermediate position that would treat CIL as a type of general law post-Erie. Sosa’s application of a traditional conception of post-Erie common law to CIL effectively undermines the intermediate position, however.)

On this question of historical pedigree, Julian suggests that Sosa did not clearly find that CIL was general common law pre-Erie and therefore left room for courts to treat CIL as “a special kind of ‘common law.’” While the Court did not explicitly state that CIL was general common law, it certainly indicated that it believed as much. For example, in discussing the law of nations’ pre-Erie status, the Court invoked two Holmesian descriptions of the general common law. Similarly, the Court stated that the law of nations included the law merchant which was unquestionably part of the general common law. Even if one could ignore this and other evidence that the Court viewed CIL as general law, the Court’s application of a very traditional conception of post-Erie common law to contemporary CIL leaves no room for concluding that CIL should now be treated specially.

Under the traditional conception the Court applied, federal courts may develop common law based on CIL pursuant to congressional authorization. That authorization, contrary to what Julian suggests, often must be more than a jurisdictional grant. The ATS was a unique situation in which the jurisdictional grant was enacted based on certain expectations about the common law that the Court decided to translate into a post-Erie world. Nor is the authorization requirement a thin line. That line prevents judicial incorporation of CIL at will. The line is crossed when both houses of Congress and the President agree to cross it. That line is the same line that separates norms and aspirations from law. As a result, it is not surprising that, as a matter of domestic law, CIL might bind the Executive once that line is crossed, but not before.

Before I conclude, let me respond to one other comment–Beth’s suggestion that one can conclude that Sosa rejected much of Filartiga and its progeny only by misinterpreting those cases. I would suggest that one can evade Sosa’s rejection of much of the pre-Sosa case law only by ignoring those cases or the parts of those cases that were inconsistent with Sosa. That is, Beth seems to define Filartiga and its progeny only to include those cases that took a “remarkably cautious” approach to the Alien Tort Statute. While it is true that Sosa did not reject all, or perhaps even most, of what had emanated from Filartiga, the Court’s adoption of language similar to that invoked by prior courts does not mean the Court endorsed those courts’ application of that language. Indeed, the Court made clear that pre-Sosa cases had not demonstrated the caution that Sosa requires. As but one example, Filartiga and its progeny placed significant weight on the ICCPR, Universal Declaration, and Restatement in identifying actionable norms of CIL. The Court in Sosa, by contrast, stated that the ICCPR and Universal Declaration had “little utility” under Sosa’s demanding standards, and the Court found that “[e]ven the Restatement’s [norms] are only the beginning of the enquiry.”

Beth and Julian raise other interesting issues—the scope of corporate aiding and abetting liability under the ATS and whether CIL binds the Executive even in the absence of political branch incorporation. These are serious issues raised by scholars whom I respect. But to maintain the reader’s respect after so much rambling on (and since these issues were not major focuses of the Article), I will not address them here.

Comments are closed.