A Completely New Standing Argument Against the Alien Tort Statute
(Please note that a commenter has rightly corrected me on two points, which I correct below)
Former State Department Legal Adviser John Bellinger (and former OJ guest blogger) spoke today at Hofstra’s biennial Legal Ethics Conference. His talk was typically engaging, honest, and interesting (it will not be news to many of our readers that Bellinger was an internal dissenter on many Bush Administration policies). But you will have to wait for the webcast to get more details.
Bellinger also flagged a case that I have totally missed: Judge Royce Lamberth’s curious dismissal of a major Alien Tort Statute lawsuit against Exxon Mobil arising out of activities in Indonesia. It is curious because it comes up with a completely new and potentially devastating argument against most ATS cases: that non-residents aliens do not have standing to bring lawsuits in the U.S., as a general matter. Whoa! Where did that argument come from? It seems to come entirely from a 1976 district court decision in Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976). [Correction: a commenter points out that the current case only has DC tort law claims remaining, and no claims under international law, although it is not clear to me that this would affect the standing argument]
I have to admit I know very little about “prudential” standing (as opposed to constitutional standing). It is worth noting that the [analysis of standing in the] 1976 decision in Berlin Democratic Club has never been cited in any judicial opinion. Ever! It is “precedent”, but hardly a very deeply developed one. I smell a reversal coming…