Recent Posts

Syrian President Bashar al-Assad has reportedly accepted Kofi Annan's six points peace plan, but the US Ambassador to Syria expressed skepticism that Assad's words would translate into deeds. Navi Pillay has told the BBC that the Syrian forces are targeting children. UN estimates put the civilian death toll in Syria at over 9000. Iran announces that it will hold nuclear talks with the...

I am not going to respond in depth to Professor Cassel's recent post on Chevron's responsibility for the "rainforest Chernobyl" caused by its predecessor's dumping of million gallons of crude oil and billion gallons of toxic waste into the Ecuadorian rainforest.  The plaintiffs' attorneys have prepared a lengthy and thoroughly footnoted reply to his open letter; interested readers can find...

John Yoo and I will be discussing our new book, Taming Globalization, tomorrow night, Wednesday, March 28, 2012 from 6-8 p.m., at the The New York Athletic Club, 180 Central Park South New York, New York in an event hosted by the Federalist Society.  Anyone who is interested is welcome to attend! For those of you on Long Island (and I know there...

[Doug Cassel is Professor of Law at Notre Dame Law School] Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.). I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility. I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter. Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them:

[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law] I summarized in a previous post my arguments that the presumption against extraterritoriality should not apply to the ATS to the extent courts use international law incorporated into U.S. common law as the rule of decision. The presumption was raised explicitly by the brief of the UK and Dutch Governments in Kiobel and will likely be raised again. This post addresses three discrete but related issues that may arise going forward:

1. Whether the ATS’s jurisdictional character alters the application of the presumption against extraterritoriality; 2. Whether “universal civil jurisdiction” is sufficiently recognized under international law—an issue that seemed to get attention at oral argument based on Chevron’s amicus brief; and 3. Choice of law, including as to corporate liability.

I’ll address each issue in turn, though I’ll say at the outset that I will also try to tie them together to open up what might be a new route for corporate liability grounded in an old legal discipline historically included as part of “the law of nations”; namely, private international law. Some of these preliminary thoughts will be elaborated and bolstered by other arguments in an amicus brief Anthony D’Amato and I intend to file in support of neither side.

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status. Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time. Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime. Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”

Amnesty International reports that fewer nations are applying the death penalty, but that those who do are making more use of it. The increase is particularly noticeable in the Middle East. Amnesty International urges EU states to renew their commitment to examine their involvement in CIA secret flights Associated Press reports that the White House offered key concessions, such as advance notice...

The Brits are looking to strip Asma al-Assad of her UK citizenship, this in the wake of the imposition of various sanctions on her and family members of other Assad associates.  Familial sanctions are an increasingly common practice, on the theory that you really get at the bad guys when you deprive their spouses of shopping trips to world capitals.  (In...

Greg Miller has a fascinating front-page story in the Washington Post yesterday (Sunday; it appears to be behind a free registration wall) profiling "Roger," the mysterious head of the Counterterrorism Center at the CIA, a key figure in the pursuit of Bin Laden, and a principal architect of the drones program. Here’s the money quote, borrowing from Lawfare: Roger, which is the first...

Opinions here, with an eight-Justice majority for the result, with the case kicked back downstairs for resolution on the merits.  In the long run, this could prove a watershed decision.  The Court rejects the "textual commitment" and "no manageable standards" bases for applying the political question doctrine.  Neither has ever made a lot of sense to me on their own...

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS....

[Eugene Kontorovich is Professor of Law at Northwestern School of Law] Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch...