[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Yousuf v. Samantar, the U.S. Court of Appeals for the Fourth Circuit held that a former Somali official was not entitled to official act immunity for alleged violations of jus cogens norms. In a recent post, Professor Ingrid Wuerth takes issue with that conclusion, arguing that state practice and ICJ jurisprudence establish that allegations of jus cogens violations “do not generally deprive conduct of its ‘official’ nature for immunity purposes.”

As I have previously explained, all immunity doctrines involve three basic questions: (1) who is covered, (2) what is covered, and (3) whether there is an exception. For example, head of state immunity (a status-based immunity) generally applies only to sitting heads of state, heads of government and foreign ministers, covers all acts (even purely private ones), and is not subject to a jus cogens exception. See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14). On the other hand, official act immunity (a conduct-based immunity) applies to lower level officials and to former officials, covers only acts taken in an official capacity, and may or may not be subject to a jus cogens exception.

In a recent article, Pinochet’s Legacy Reassessed, 106 Am. J. Int’l L. 731 (2012), Ingrid looks exhaustively at the third question in the context of official act immunity, concluding that state practice does not support a jus cogens exception to such immunity. That conclusion may or may not be correct—recent state practice including Samantar and the decision of the Swiss Federal Criminal Court in Nezzar may cast some doubt—but I will assume for present purposes that it is correct. Ingrid’s AJIL article did not, however, focus the same attention on the question of what constitutes an official act to which immunity attaches in the first place. Instead, she simply assumed that the second and third questions were the same. See id. at 732 n.9. In her recent post and in an interesting article on the Nezzar case, Ingrid answers the “what acts” question by adopting what one might call the “atributability theory” of official act immunity—that any act attributable to the state for purposes of state responsibility must be deemed an “official act” for purposes of conduct-based immunity. The problem is that there is no general and consistent practice of states supporting that position.

That is not to say that there is no authority at all in support of the attributability theory. The former rapporteur of the ILC’s project on the immunity of state officials from foreign jurisdiction adopted this theory in paragraph 24 of his Second Report. But his assertion has proved very controversial at the ILC and is flatly contradicted by another final ILC report, the 2001 Draft Articles on State Responsibility, article 58 of which expressly states that…

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My friend John Bellinger over at Lawfare can rightly claim credit for keeping the extraterritoriality issue before the Supreme Court in Kiobel. Indeed, the Supreme Court’s conclusion that “principles underlying” the presumption against extraterritoriality apply to claims under the Alien Tort Statute (ATS) represents a victory for the Bush Administration’s legal position in ATS cases, an administration John served with distinction.

That Bush Administration legal position, however, marked a sharp break with past positions of the United States Government regarding extraterritorial application of the ATS. In 1980, the Carter Administration argued in Filartiga v. Pena-Irala that the ATS reaches claims by one alien against another alien for torture committed abroad. Indeed, the United States said that “a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the protection of human rights.” In 1995, the Clinton Administration successfully supported application of the ATS to foreign non-state actors for human rights violations abroad in Kadic v. Karadzic, a decision that opened the door to the wave of corporate cases that shortly followed. Even the intervening Reagan Administration did not take the position that the ATS did not apply to conduct abroad.

It was not until 2004 that the United States argued for the first time, in Sosa v. Alvarez-Machain, that the ATS did not apply extraterritorially. The extraterritorial nature of claim in Sosa could hardly have escaped the notice of the Court, since the parallel Federal Tort Claims Act suit against the United States was dismissed under the FTCA’s foreign country exception. Yet not a single Justice in Sosa adopted the Bush Administration’s extraterritoriality position, and there are many parts of the Sosa opinion that only make sense on the assumption that the ATS applies to conduct abroad. Undaunted, the Bush Administration continued to press the extraterritoriality argument in nine nearly identical briefs filed between 2004 and 2008. Not a single appellate court adopted the argument—and many expressly rejected it. Not a single appellate court, that is, until the Supreme Court in Kiobel.

But upon reflection, there is also less to the victory of the Bush Administration’s position in Kiobel than meets the eye. Part IV of the Court’s opinion, coupled with Justice Kennedy’s observation that the opinion “is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute” and Justice Alito’s complaint that Kiobel “leaves much unanswered,” is a recipe for continued litigation. The Court’s observation that “it would reach too far to say that mere corporate presence suffices” should send chills down the spines of corporations domiciled in the United States (and their general counsels). Nor is the Court’s grant of certiorari in DaimlerChrysler AG v. Bauman likely to bring greater clarity. Although that case arose in the context of an ATS suit, the only issue on appeal concerns personal jurisdiction over a foreign company—an important issue to be sure, but one largely unrelated to the ATS and of little help to U.S. companies.

Chief Justice Roberts’s opinion in Kiobel invites Congress to clarify its intent with “a statute more specific than the ATS.” Congress did something similar in 1992 when it passed the Torture Victim Protection Act, authorizing civil claims for torture and extrajudicial killing abroad, while incorporating substantive definitions and procedural safeguards. The human rights and business communities would be well advised to seek common ground on a reasonable statute. The alternative would seem to be decades more litigation to answer the questions that Kiobel leaves open.

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He is the co-editor (with David L. Sloss and Michael D. Ramsey) of International Law in the U.S. Supreme Court: Continuity and Change (2011).]

One of the many virtues of Professor Curtis Bradley’s new book International Law in the U.S. Legal System is that it presents both sides of the arguments. That is certainly true of the chapters addressing customary international law. For example, Curt and I have differed in the past over whether customary international law is part of the “Laws of the United States” under Article III of the Constitution, so that Congress may, if it wishes, grant the federal courts subject matter jurisdiction over suits arising under customary international law. But he points readers to my argument that customary international law does fall within Article III, while of course giving his own view that it does not (pp. 141-42, 199-200).

Sometimes, however, a subtle slant can sneak into the way an issue is framed. In Chapter 5, Curt tells the by now familiar story that customary international law was understood at the framing to be part of general common law (pp. 142-46), that the Supreme Court’s 1938 decision in Erie Railroad v. Tompkins destabilized the situation by ending the general common law regime (pp. 146-47), and that Sabbatino, Filartiga, and the Restatement (Third) of Foreign Relations Law supported the possibility of customary international law as federal common law (pp. 147-52), before laying out his challenges to “the federal common law claim” (p. 155). He points out that if customary international law were federal common law for Article III purposes (as Filartiga held), then it might also preempt inconsistent state law under the Supremacy Clause of Article VI and bind the President under the Take Care Clause in Article II (pp. 152-54). “It is not clear,” he writes, “what federal law source exists for the wholesale incorporation of CIL into federal common law” (p. 156).

(more…)

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On Monday, Mohamed Ali Samantar filed a cert petition asking the Supreme Court to review the Fourth Circuit’s decision that he is not entitled to conduct-based immunity in a suit brought under the Alien Tort Statute and Torture Victim Protection Act alleging torture, arbitrary detention, and extrajudicial killing. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, the District Court followed the State Department’s determination, and the Court of Appeals affirmed. The Fourth Circuit held: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms. I have previously explained why I believe that decision to be fundamentally correct.

Samantar’s cert petition argues that the Fourth Circuit’s decision conflicts with the decisions of the Second Circuit in Matar v. Dichter, the D.C. Circuit in Belhas v. Ya’alon, and the Seventh Circuit in Ye v. Zemin, each of which refused to recognize a jus cogens exception to the immunity at issue. In Matar, the Second Circuit deferred to the State Department’s determination that the defendant was entitled to conduct-based immunity and refused to override that determination by finding a jus cogens exception. But in Samantar, the State Department has determined that the defendant is not entitled to conduct-based immunity, so the question whether to recognize a jus cogens exception was never presented. Belhas was decided on the assumption—now corrected by the Supreme Court’s 2010 Samantar decision—that the Foreign Sovereign Immunities Act (FSIA) governed the immunity of foreign officials and held that there is no jus cogens exception to the FSIA, a conclusion that prior decisions had reached in suits against states. Ye held that there was no jus cogens exception to head-of-state immunity, an immunity that attaches because of an official’s status as a sitting head of state. In each of these cases, the question was whether to recognize an exception to an immunity that had—for one reason or another—already attached.

The question in Samantar, by contrast, is not whether to recognize a jus cogens exception to an immunity that has already attached, but the antecedent question whether jus cogens violations can be taken in an official capacity so that conduct-based immunity attaches in the first place. As Judge Stephen Williams noted in his concurring opinion in Belhas, the question whether an immunity attaches is “quite distinct” from the question whether to recognize exceptions to an existing immunity. The Fourth Circuit’s decision in Samantar is the first Court of Appeals decision to say whether jus cogens violations can constitute official acts for purposes of conduct-based immunity.

My friend Curt Bradley has suggested that distinguishing these two questions is just semantics. To see why it is not, it may be useful to step back and consider how immunity generally works. All immunity questions proceed in three basic steps: (1) who is covered, (2) what is covered, and (3) is there an exception. I will use state immunity, status-based immunity, and conduct-based immunity as illustrations, but one could ask the same questions with respect to diplomatic and consular immunities. (more…)

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on immunity matters. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

The Fourth Circuit’s November 2, 2012 decision in Yousuf v. Samantar has generated discussion by Professor Curtis Bradley, former State Department Legal Adviser John Bellinger, and myself. There, the Court of Appeals held that State Department determinations of conduct-based immunity are entitled to substantial weight, but not absolute deference, and that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms. But to understand the current state of so-called “official act” immunity in the United States, it is also worth looking at the U.S. Government’s recent filings.

To avoid confusion, it is important to keep the categories of immunity straight. The immunity of foreign officials in U.S. courts is distinct from the immunity of foreign states. Since 1976, foreign state immunity has been governed by the Foreign Sovereign Immunities Act (FSIA), but in 2010 the Supreme Court held in Samantar v. Yousuf that the FSIA does not apply to foreign officials. The immunities of foreign officials fall into two basic categories: (1) Status-based immunities attach to the current holders of certain offices, like heads of state. They extend to all acts (even to ones that are purely private) but apply only during the time the official is in office. (2) Conduct-based immunity, on the other hand, attaches only to acts taken in an “official capacity,” but applies even after an official leaves office. The immunities of diplomatic and consular personnel are covered by treaties, but otherwise the status- and conduct-based immunities of foreign officials in U.S. courts are governed by federal common law.

Since the Supreme Court’s decision in Samantar, determinations of status-based immunities have proved relatively straightforward. The U.S. Government has filed determinations of immunity in a number of cases involving sitting heads of state, and U.S. courts have deferred to those determinations. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). But the U.S. Government has also recently made several filings in cases involving conduct-based immunity.

The most recent came on December 17 in the…

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On November 2, the U.S. Court of Appeals for the Fourth Circuit issued its opinion on remand in Yousuf v. Samantar. The opinion contains two key holdings: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms.

Samantar served as Defense Minister and then as Prime Minister of Somalia before fleeing that country in 1991 and coming to the United States in 1997. Plaintiffs brought suit under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) alleging that they and members of their families had been subjected to torture, arbitrary detention, and extrajudicial killing by government agents under Samantar’s command. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, emphasizing the lack of a current recognized government in Somalia that could assert or waive Samantar’s immunity and the fact that Samantar is a resident of the United States. The district court followed the State Department’s determination, and Samantar appealed to the Fourth Circuit.

The United States filed an amicus brief in the Fourth Circuit arguing that the State Department’s determination with respect to Samantar’s immunity was binding on the courts, but the Court of Appeals held that this depended on the kind of immunity determined. Broadly speaking, there are two sorts of foreign official immunities. Status-based immunities—like head-of-state immunity—depend on an official’s status as the current holder of an office and extend to all of his actions, whenever performed. Such immunities last only as long as the official continues in office. Conduct-based immunity, on the other hand, extends only to acts taken in an official capacity, but such immunity continues after the official leaves office. Current officials who do not qualify for status-based immunities, as well as all former officials, are entitled only to conduct-based immunity for their official acts.

Citing the President’s constitutional authority to “receive Ambassadors and other public Ministers,” the Fourth Circuit concluded “that the State Department’s pronouncement as to head-of-state immunity is entitled to absolute deference.” Slip Op. 14. This conclusion is consistent with other recent decisions in head-of-state cases treating the State Department’s determinations as conclusive. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). The State Department had never recognized Samantar as Somalia’s head of state (although even if it had, his status-based immunity would have ended when he left office). But the Fourth Circuit is the first court of appeals to consider the degree of deference owed to determinations of conduct-based immunity following the Supreme Court’s decision in Samantar. The Fourth Circuit found “no equivalent constitutional basis” for the State Department’s determination of official-act immunity, which “is not controlling, but . . . carries substantial weight.” Slip Op. 14, 15.

Turning to the substance of conduct-based immunity, the Court of Appeals held that “officials from other countries are not entitled to foreign official immunity for jus cogens violations.” Slip Op. 22. As the court noted, this is consistent with a long line of pre-Samantar cases, which applied the FSIA to foreign officials but concluded that gross human rights violations were not official acts entitled to immunity. Slip Op. 17-18. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) (concluding that “Marcos’ acts of torture, execution, and disappearance were clearly acts outside of his authority as President”). The Supreme Court in Samantar referred to the same line of cases and observed that the distinction between official acts and those beyond the scope of authority “may be correct as a matter of common-law principles.” 130 S. Ct. 2278, 2291 n.17 (2010). Thus, the Fourth Circuit was certainly right to conclude that the pre-Samantar cases discussing official capacity in the context of the FSIA “are instructive for post-Samantar questions of common law immunity.” Slip. Op. 17.

Unfortunately, this section of the Fourth Circuit’s opinion contains two analytical errors. While these errors offset each other, allowing the court to reach the correct conclusion, they weaken the opinion’s persuasive force. The Court of Appeals first erred by assuming that whether acts are official turns on whether those acts are attributable to the State. Slip Op. 17. As Article 58 of the ILC Draft Articles on State Responsibility makes clear, the attributability of an act to the State for purposes of state responsibility is “without prejudice to any question of the individual responsibility of any person acting on behalf of a State.” Indeed, both the U.S. government and the Supreme Court in Samantar expressly rejected the syllogism “that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state.” 130 S. Ct. at 2290. See also Brief of the United States as Amicus Curiae, Samantar v. Yousuf, at 12 (noting that while “the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers,” it is “incorrect to extrapolate from that principle the conclusion that a suit against a foreign official is invariably equivalent to a suit against the foreign state itself”) (internal quotation marks and citations omitted).

The Court of Appeals’ second error was to confuse the question whether jus cogens violations can be considered to have been taken in an official capacity at all, so that conduct-based immunity attaches in the first place, with the question whether there is a jus cogens exception to immunity. Slip Op. at 19-22. There is a long line of authority holding that once immunity has been established, no exception for jus cogens violations exists. See, e.g.,Jurisdictional Immunities of the State (Germ. v. Italy), 2012 I.C.J. __, ¶ 97 (Feb. 3); Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶ 58 (Feb. 14). But none of these cases addresses the threshold question for conduct-based immunity of whether an act was taken in an official capacity in the first instance, for unlike other immunities, conduct-based immunity attaches only to official acts. As Judge Williams noted in Belhas v. Ya’alon, the threshold question whether a defendant “acted in his official capacity” so that immunity attaches in the first place is “quite distinct” from the existence of a jus cogens exception. 515 F.3d 1279, 1292 (D.C. Cir. 2008) (Williams, J., concurring). On this threshold question of official capacity there is an equally long line of authority—much of it cited by the Fourth Circuit—that jus cogens violations cannot be considered official acts for the purposes of conduct-based immunity. See, e.g., Regina v. Bartle ex parte Pinochet, 38 I.L.M. 581, 594 (H.L. 1999) (Lord Browne-Wilkinson) (“How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes?”). Congress took the same view in enacting the TVPA, finding that “because no state officially condones torture or extrajudicial killings, few such acts, if any, would fall under the rubric of ‘official actions’ taken in the course of an official’s duties.” S. Rep. No. 102-249, at 8 (1991). Thus, the Court of Appeals was right to conclude that, “as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.” Slip Op. 19.

One suspects that the Fourth Circuit’s first error of viewing official capacity as turning on attributability to the State forced it into its second error of viewing jus cogens through the lens of an exception. The unfortunate results are apparent in passages such as this: “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.” Slip Op. 21-22. The better view—and the one consistent with both international law and U.S. practice—is that jus cogens violations are not performed in the defendant’s official capacity and are therefore not entitled to conduct-based immunity, even if the acts are attributable to the State for purposes of state responsibility.

In any event, as I have said, the court’s two analytical errors offset each other, and the court reached the correct conclusion. The Fourth Circuit’s holding that jus cogens violations are not official acts entitled to conduct-based immunity is consistent with existing U.S. case law, with Congress’s understanding in enacting the TVPA, and with customary international law. As more conduct-based immunity cases come before the courts, the Fourth Circuit’s decision in Samantar should be remembered not for its technical errors but for its important holding.

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My thanks to Opinio Juris for inviting me to guest blog on the reargument in Kiobel v. Royal Dutch Petroleum Co., which I attended on Monday. As most readers likely know, the Supreme Court originally granted cert to decide whether corporations may be sued for human rights violations under the Alien Tort Statute (ATS) as natural persons may be. But after oral argument last February, the Court asked the parties to address the additional question of whether, and under what circumstances, the ATS applies to conduct in foreign countries. Because almost all claims brought under the ATS to date—including the Second Circuit’s seminal 1980 decision in Filartiga v.Pena-Irala and the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain—have involved alleged conduct abroad, the Court’s additional question raised the stakes for human rights litigation considerably.

Respondents and many of their amici urged the Court to apply the presumption against extraterritoriality to the ATS and limit causes of action exclusively to violations of international law in the United States. But that argument appeared to gain little traction with the Court on Monday. Chief Justice Roberts expressed skepticism when Respondents’ counsel Kathleen Sullivan argued that piracy on the high seas was not within the original scope of the ATS, while Justice Scalia (who wrote the Court’s most recent decision applying the presumption against extraterritoriality in Morrison v. National Australia Bank) said he did not know of any cases applying the presumption only to the territory of a foreign country and not to the high seas. Sullivan’s assertion that “[e]very single founding era precedent that stimulated the ATS or came soon in its aftermath involved international law violations alleged to have occurred on U.S. soil or in U.S. waters” was quickly rebutted by Justice Breyer, invoking Attorney General Bradford’s 1795 opinion that expressed “no doubt” that a civil suit could be brought under the ATS for violations of the law of nations in Sierra Leone.

Meanwhile, Justice Kagan offered a variation of the 1784 Marbois incident, hypothesizing that the French ambassador to Britain was attacked in London by an American citizen who sought refuge in the United States and suggesting that…

The joy of this project was making the kind of discovery Roger Alford recounts in his post. Alford’s chapter on international law as interpretive tool from 1901 to 1945 discusses, among other things, the Supreme Court’s various approaches to the extraterritorial reach of statutes during that period. Among these approaches was the government purpose test of Unites States v. Bowman (1922).

It is interesting to compare Bowman to the Supreme Court’s 2010 decision in Morrison v. National Australia Bank. In Morrison, the Court applied the presumption against extraterritoriality to the antifraud provisions of the Securities Exchange Act. But the Court reoriented the presumption away from a mechanical determination of where the prohibited conduct occurred (Florida in this case), instructing lower courts to examine the “focus” of the statute. Morrison’s “focus” in some ways echoes Bowman’s “purpose.”

I have argued on this blog that the “focus” (or if you prefer, “purpose”) of congressional legislation is generally to prevent harms in the United States and that Morrison adopts an effects test, albeit a narrower one than the Second Circuit had applied in securities litigation. I won’t repeat those arguments, but for those who are interested there is more here and here.

To my mind, another interesting thing about Alford’s chapter is the way the presumption against extraterritoriality started to become detached from international law during his period. That process continued in Foley Bros. v. Filardo (1949), decided just after Alford’s period, in which the Court first articulated the modern justification for the presumption—“that Congress is primarily concerned with domestic conditions”—the justification the Court repeated in Morrison.

Harlan Cohen and Ingrid Wuerth have provided characteristically insightful comments about the overall strengths and weaknesses of the book. Cohen cautions that its “grand narrative” may make the outcomes of particular cases seem “overdetermined” and suggest that the Supreme Court is more “purposive” about its use of international law than is actually the case. Wuerth tactfully notes that the editors’ and authors’ “contemporary doctrinal claims” may have influenced the historical accounts.
The editors of this volume did indeed attempt to construct a “grand narrative” because it was through that narrative that we hoped to discover what had stayed the same and what had changed in the Supreme Court’s international law doctrine. But we did not know the whole story when we started and we learned much along the way, particularly about the periods between 1860 and 1945, which have received less scholarly attention. To cite just two examples, we were surprised by the strength of the Court’s treaty jurisprudence well into the twentieth century, a period Michael Van Alstine’s chapter calls “the golden age of treaties.” We were also surprised by the eclipse of customary international law in the early twentieth century as the nineteenth century staples of international law—“pirates, prizes, and privateers” in Mike Ramsey’s phrase—largely disappeared from the Court’s docket. Piecing together the grand narrative was made much easier by the incredibly talented group of authors we were privileged to work with. We think (and Cohen does not disagree) that there is value in knowing what changed and when, but we also agree with him that there is value in examining the trees that make up this forest. We hope the book may serve as a starting point for scholarship that expands upon, explains, and even challenges points in the narrative.
Wuerth’s concern that the doctrinal controversies of the present (and the contributors’ views on them) may cast a shadow on the book’s treatment of the past is certainly a fair one and one that we worked hard to minimize. It helped that the book’s three editors do not agree about all the doctrinal controversies of the present, and we deliberately chose authors who represent a spectrum of views. We also wrestled (almost) all references to future events into the footnotes. But it is nearly impossible to avoid the shadow of the present completely. To take my own chapter on customary international law from 1946-2000 as evidence, I focused on the interplay between Sabbatino and the alien tort cases, particularly on the question of federal common law, because that is what so much of the scholarship of the past 15 years has been about. Had the controversies of the present been different (the methods for determining customary international law, say), this chapter would undoubtedly have had a somewhat different focus. (On the other hand, the federal common law theme also ties together the interstate boundary cases of the second half of the twentieth century, about which I learned more than I ever thought I would.)
We look forward to continuing the discussion and will take the opportunity to respond when it seems appropriate.

[William S. Dodge is a Professor of Law at the University of California, Hastings College of the Law. One of his articles on extraterritoriality was cited in Justice Stevens’s concurring opinion.]

There is no doubt that Morrison v. National Australia Bank is a landmark opinion, not just because the Supreme Court addresses here, for the first time, the extraterritorial reach of U.S. securities law, but also for what the opinion tells us more generally about the presumption against extraterritoriality.

As Margaret Sachs has already recounted, the Courts of Appeals, under the Second Circuit’s leadership, had established two tests for applying § 10(b) of the Securities Exchange Act to cases with foreign elements. Under the effects test, § 10(b) applied to foreign misrepresentations causing substantial effects in the United States. Such effects could be shown if the shares were traded on an American exchange or if fraudulent materials were sent to investors in the United States. Under the conduct test, § 10(b) applied to substantial misrepresentations in the United States that caused losses abroad. (For a summary of the law as it used to be, see Vagts, Dodge & Koh, Transnational Business Problems 454-57 (4th ed. 2008).)

In Morrison, Justice Scalia, writing for the Court, held that the presumption against extraterritoriality applies to the Securities Exchange Act. One might have guessed this would lead the Court to reject the effects test and limit § 10(b) to fraudulent conduct in the United States. But in fact the Court did the reverse, eliminating the conduct test and endorsing a narrower version of the Second Circuit’s effects test. Section 10(b), the Court held, can apply to fraudulent conduct abroad but only if the shares in question are listed on an American exchange or otherwise sold in the United States. How can this be so?

In an article published more than a decade ago, I noted that there are at least three ways to understand the presumption against extraterritoriality: (1) that acts of Congress should presumptively apply only to conduct in the United States regardless of whether the conduct causes effects in the United States (Justice Holmes’s view in American Banana); (2) that acts of Congress should presumptively apply only to conduct that causes effects in the United States regardless of where the conduct occurs (Judge Bork’s view in Zoelsch v. Arthur Anderson & Co.); and (3) that acts of Congress should presumptively apply to conduct occurring within or having effects within the United States (Judge Mikva’s view in Environmental Defense Fund v. Massey). Because I believe the only proper basis for the presumption today is the notion that Congress is primarily concerned with domestic conditions, I argued that Judge Bork’s view—that acts of Congress should presumptively apply only to conduct that causes effects in the United States—was the correct one.

A majority of the Supreme Court now seems to agree. The basis for the presumption, Justice Scalia writes in Morrison, is “the perception that Congress ordinarily legislates with respect to domestic, not foreign matters.” Slip Op. 5-6. “[T]he focus of the Exchange Act,” he continues, “is not upon the place where the deception originated, but upon purchases and sales of securities in the United States.” Slip Op. 17. In other words, the location of the fraudulent conduct is irrelevant; what matters is whether the conduct affects transactions within the United States. Moreover, Judge Bork’s opinion in Zoelsch questioning the conduct test but endorsing the effects test is virtually the only lower court opinion for which Justice Scalia has a kind word in Morrison. Slip Op. 10-11.

I agree with and applaud this understanding of the presumption against extraterritoriality. (Ironically, my article was cited not by Scalia’s majority opinion but by Justice Stevens’s concurrence.) But Morrison sits uncomfortably alongside other opinions written by Justice Scalia and Justice Thomas (whom Scalia routinely joins on such questions), which have focused formalistically on the location of the conduct. In Pasquantino, to take the most obvious example, Justice Thomas (writing for a majority that included Scalia) rejected the argument by Justices Ginsburg and Breyer in dissent that the presumption against extraterritoriality barred application of the federal wire fraud statute to a scheme hatched in the United States to defraud Canada of tax revenue. “This domestic element of petitioners’ conduct is what the Government is punishing in this prosecution, no less than when it prosecutes a scheme to defraud a foreign individual or corporation,” wrote Thomas. Morrison distinguishes Pasquantino on the ground that the wire fraud statute prohibits any fraud while § 10(b) prohibits only fraud “in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered.” Slip Op. 23. But if the text of § 10(b) limits its reach, resort to the presumption should have been unnecessary in Morrison. And if resort to the presumption was relevant in Morrison to determine what fraud Congress had in mind with respect to § 10(b), it should have been equally relevant in Pasquantino to determine what fraud Congress had in mind with respect to 18 U.S.C. § 1343.

I would like to say that Morrison represents convergence on the principle that when courts construe regulatory statutes in an international context it is the effects that matter, not the conduct. Justices Breyer and Ginsburg have emphasized in cases like Small v. United States the “commonsense notion that Congress generally legislates with domestic conditions in mind.” And Justice Stevens adopted an effects view of the presumption as far back as his 1992 concurrence in Defenders of Wildlife v. Lujan. But in Morrison, Stevens and Ginsburg would have preserved the Second Circuit’s conduct test and so concurred only in the judgment, while Breyer joined the majority only to the extent it is consistent with his own inscrutable one page concurrence. So if Justice Scalia’s approach to the presumption in Morrison is inconsistent with his earlier views, at least he is in good company.

[We are grateful to continue our discussion on Samantar with a comment from Prof. William Dodge of the UC Hastings College of Law. Please keep following us for more thoughts in future posts and click "Related Posts" to see earlier contributions on this question.]

Like my colleague Chimene Keitner, I wrote an amicus brief supporting respondents (co-authored with Mike Ramsey), and I too am happy with the result in Samantar.

Although Curt Bradley’s post magnanimously notes that his position lost 9-0 in Samantar, it would be wrong to see the decision as a defeat for Curt and his co-author Jack Goldsmith. What they have succeeded in doing, despite the loss in Samantar, is to raise the issue of official immunity, which it is safe to predict will now be pleaded as a defense to many ATS and TVPA claims.

After Samantar, we know that the immunities of foreign officials (at least those not covered by treaties) are “properly governed by the common law.” I find it interesting that the Court never says “federal common law,” though I doubt anyone thinks the Court meant for the district court to apply the common law of Virginia on remand. Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-27 (1964) (holding that the closely analogous act of state doctrine must be applied as a matter of federal common law).

One critical issue the district court will have to address is the relationship between the (federal) common law of immunity and customary international law. Curt’s post finds it remarkable, that the Court didn’t say more about international law, but as footnote 14 of the opinion points out, the Court didn’t have to say anything in order to decide this case. In fact, sovereign immunity has long been treated as a question of comity in the United States rather than as a question of customary international law. The Schooner Exchange v. McFaddon, 11 U.S. 116, 136-37, 146 (1812), says that immunity is based on consent and may be withdrawn. (The analysis of Schooner Exchange gets somewhat complicated because international law at the time recognized that some rules of the law of nations were optional, a topic Curt has also written about recently.) The Santissima Trinidad, 20 U.S. 283, 353 (1822), expressly states that sovereign immunity is a matter of “public comity and convenience” and modern decisions like Verlinden are to the same effect. Thus, even if the House of Lords decision in Jones were a relevant statement of customary international law (and Chimene’s brief does an able job of explaining why it is not), it would not necessarily be applied directly as common law.

Another critical issue is the role of the executive. The Court’s brief history of foreign sovereign immunity skips from 1812 to 1938, omitting a period during which the executive’s determinations of immunity were not treated as conclusive. See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926). Most (perhaps all) of the modern cases deferring to the executive’s determinations of official immunity have involved diplomatic or head of state immunity. It is one thing for the President to determine under his power to send and receive ambassadors who is a diplomat or under his recognition power who is a head of state, but perhaps quite another to determine whether torture is an “official act” for which a defendant is entitled to immunity. The Solicitor General’s brief took the position that the immunity of foreign officials is governed by “principles adopted by the executive branch,” but it is not immediately obvious where the President gets this law-making power from.

In any event, Samantar should provide lots of grist for the law review mill.

Picking up on the thread that Tim began and that Peter and David have advanced, I wonder if we might gain some insight by looking at the other incorporation debate that occurred during the twentieth century—the debate over which provisions of the Bill of Rights should be applied to the states through the Fourteenth Amendment. I claim no particular expertise on that subject, but my recollection is that Justice Black thought the whole package should be applied wholesale, while Justice Harlan would have proceed provision by provision and applied only those that were most fundamental. If one compares Black’s and Harlan’s opinions in Reid, the parallels are obvious.

Justice Kennedy picked up Harlan’s position in Verdugo and essentially repeats it in Boumediene. Under this approach, certain rights like due process may apply everywhere the government acts (though I suppose what process is due might well vary, just as it does domestically), while others that are seen more as particularities of American law (e.g. the warrant requirement) are not.

In the domestic incorporation debate, the Supreme Court did proceed provision by provision (Harlan’s approach), but ended up incorporating almost all of the Bill of Rights (Black’s result). My memory is that only indictment by a grand jury and the right to a civil jury trial have not been applied to the states. I am not suggesting that the result will be or should be the same in the international context. Differences in legal culture may mean that what would be considered fundamental within the United States (a jury in criminal cases) might not be considered fundamental outside it (in Puerto Rico). But the basic question—is the right sufficient fundamental—may be the same.

But by what metric do we judge that question? Do we look to the legal traditions of other nations to find common ground, or is it up to the intuitions of the justices of the Supreme Court? Judging from Boumediene, the answer would seem to be the latter. There is perhaps no right more fundamental in Anglo-American law than habeas corpus (it was one of the few written into the original Constitution), but I believe it is largely unknown outside legal systems descended from England’s.