Online Workshop Response: Justice Scalia and the Majority

by David Moore

The perception that Justice Scalia views the majority’s approach differently than our Article does results, at least in part, from the somewhat complicated relation between two issues that I raised in my initial post: (a) the post-Erie status of CIL in the absence of political branch authorization, and (b) the import of the Alien Tort Statute, in particular whether the ATS authorizes the application of CIL as federal common law. In answering the latter question, all nine justices relied, not on some notion that CIL is, wholesale, federal common law, but on political branch authorization—the intent of the First Congress in enacting the ATS. The justices likewise agreed on the nature of that intent–that Congress wished to provide jurisdiction to support a limited set of general law claims based on the law of nations. As our Article reports, then, Justice Scalia and the majority see the same need for political branch authorization, unanimously endorsing (for this and other reasons) the revisionist view on issue a.

Justice Scalia’s disagreement with the majority lies not with how to determine whether CIL may be applied as federal common law in ATS cases (again, issue a), but on whether the ATS authorizes the application of CIL as federal common law (issue b). As Roger indicates, Justice Scalia did not believe that the First Congress’s intent could be translated into a post-Erie world in which law of nations claims would be federal, rather than general, common law creating arising under jurisdiction, preempting state law, and potentially binding the Executive. The majority disagreed (in part based on the intent of modern Congresses), finding it possible to effect the First Congress’s intent in a post-Erie environment. Our Article, which is descriptive rather than normative, seeks neither to defend nor critique the majority’s conclusion that the intent behind the ATS provides authorization for a limited set of post-Erie common law claims derived from CIL. As a result, while Justice Scalia vociferously opposes the majority’s translation rationale, our Article reports the rationale and the resulting resolution of issue b, but remains silent on the rationale’s merits. That is where our divergence with Justice Scalia’s concurrence lies.

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