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Search: Sosa

24 Feb

generally. Moore’s argument is original and provocative but in my view it misreads Sosa. First, it resurrects in somewhat different form the argument that the Supreme Court expressly rejected in Sosa—that Congress must expressly incorporate customary international law before courts may apply it. Second, it places too much reliance on the Sosa Court’s discussion of intent. In a case involving the interpretation of a statute, like the Alien Tort Statute, a focus on congressional intent is perfectly appropriate. That does not mean, however, that congressional intent has anything to say...
24.02.06 | |

27 Sep

...from the so-called political branches; and second, to agree strongly with Beth Stephens about Sosa ratifying most post-Filartiga ATS jurisprudence. First, I believe that Sosa simply leaves open the question about the status of CIL absent authorization. To point out the obvious, that question wasn’t before the Court, nor was it a topic of sustained discussion in dicta. Thus we are left with making inferences from limited evidence. On one hand, Sosa indeed adopts sub silentio most of Curt and Jack’s prudential concerns, which themselves relate to democratic approval and/or...
27.09.06 | |

25 Sep

...federal law, and (4) the scope of CIL norms actionable in ATS suits and the permissible sources for identifying those norms. The Supreme Court weighed into the debate over CIL’s domestic status in its 2004 opinion in Sosa v. Alvarez-Machain. While most scholars have concluded that Sosa supports the modern position, they have reached that conclusion by conflating Sosa’s holding that congressional expectation behind the ATS supports judicial recognition of limited common law claims based on CIL (issue 3), with the separate question of whether CIL is federal common law...
25.09.06 | |

26 Sep

...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”...
26.09.06 | |

11 Dec

Bill Dodge has an interesting piece on customary international law and Sosa that was recently published on SSRN. It is worth a read, particularly in light of our online workshop on the piece by Jack Goldsmith, Curtis Bradley, and David Moore. Here is Dodge’s abstract: This paper explores the role of customary international law in the U.S. legal system after the Supreme Court’s decision in Sosa v. Alvarez-Machain. After discussing Sosa’s impact both on alien tort litigation and on the debate over whether customary international law is federal common law,...
11.12.06 | |

03 Mar

Here is the final post in my conversation with Prof. David Weissbrodt on Kiobel and corporate liability under the Alien Tort Statute. It is worth emphasizing why I think the “choice of law” question is so crucial to resolving this case (and why Justice Breyer agrees with me on this point). In its 2004 decision, Sosa v. Alvarez-Machain, the Supreme Court decided that the Alien Tort Statute authorized the recognition of causes of action that were “specific, universal, and obligatory.” In that case, the Court actually rejected the norm of...
03.03.12 | |

19 Apr

[Professor Bill Dodge teaches at Hastings College of Law and is an expert on the Alien Tort Statute] Last September, Opinio Juris hosted an online workshop to consider the forthcoming article by Curt Bradley, Jack Goldsmith, and David Moore, “Sosa, Customary International Law, and the Continuing Relevance of Erie.” The article has now come forth, and I have written a brief response for the Harvard Law Review Forum. In it, I argue that Sosa rejected Bradley, Goldsmith, and Moore’s position that courts must find positive authority for the incorporation of...
19.04.07 | |

25 Sep

...arguably launched a new era in foreign relations law scholarship. In the 2004 decision of Sosa v. Alvarez-Machain, the Supreme Court issued its first serious opinion discussing the status of customary international law in U.S. courts. Some suggested this decision represented a rebuke to the Bradley/Goldsmith critique. But joined by David Moore, Bradley and Goldsmith have offered their assessment of the effect of that decision on their original critique and on the status of customary international law more generally. We’ll begin today with an opening post by David Moore laying...
25.09.06 | |

26 Sep

I want to thank David again for agreeing to join us here at Opinio Juris for the next couple of days to discuss his forthcoming article (written with Curtis Bradley and Jack Goldsmith), “Sosa, Customary International Law, and the Relevance of Erie” (the “Article”). The Article demonstrates to me that Sosa has not ended the debate about CIL that Curt and Jack launched 10 years ago. I agree with you all that the Sosa Court has still not explained fully how or why CIL is integrated into the U.S. legal...
26.09.06 | |

03 Feb

...domestic law. And Justice Breyer’s divergent conclusions in Sosa and Medellin—favoring a more limited role for CIL than the Sosa majority allowed but a more expansive role for treaties than the Medellin Court permitted—indicates that he, at least, may appreciate the revisionist suggestion that treaties should, absent statute or constitutional amendment to the contrary, have a broader domestic role than CIL. A Developing Uniformity Not only do the considerations that Medellin invoked to determine self-execution reveal a separation of powers perspective similar to Sosa’s, those considerations significantly resemble the guidance...
03.02.10 | |

17 Sep

...law’s own terms, is regarded as juridically capable of violating it. It is important to note that this is all logically prior to Sosa’s requirements. What the Second Circuit has held here regarding corporate liability is not driven by Sosa at all. Sosa says that even if a claim satisfies the requirement of a violation of international law, the nature of the violation must meet a set of additional criteria – criteria that are established not as a matter of international law, but as matter of US Constitutional law imposed...
17.09.10 | |

24 Jan

to the ATS and the underlying federal common law claims, there remains the possibility that state courts could fashion state common law claims based on the criteria established in Sosa. State law routinely mirrors comparable federal law. There is nothing in Sosa or Kiobel that prevents a state court from recognizing a state cause of action for violations of “a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms,” such as piracy, violations of safe conducts, or...
24.01.14 | |