My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. It could do so by holding that the ATS does not apply extraterritorially, or that it does not apply unless there is...
John Witt's magisterial new book, Lincoln's Code: The Laws of War in American History, appeared a few weeks ago, and Gary Bass has an enthusiastic review of it in yesterday's New York Times Sunday Book Review. I am only about half-way through it, but Bass' enthusiasm is entirely justified - it is a fabulous book and one that I think...
Having followed the terrorism litigation against Iran for years, I was fascinated to read of the recent legislation—Section 502 of the Iran Threat Reduction and Syria Human Rights--that creates a legislative fix for victims of one particular group of terrorist victims but not thousands of others. The law in question grants plaintiffs/judgment creditors in one and only one case—Peterson...
It is a draft platform, but these parts of the 2012 GOP Platform are certainly interesting. It appears to have strong language in favor of "American Exceptionalism" and American sovereignty. Under our Constitution, treaties become the law of the land. So it is all the more important that the Congress -- the senate through its ratifying power and the House through...
Since the late 1990s, thirty-nine nations have signed the OECD Anti-Bribery Convention. So far so good. But unfortunately, the treaty essentially is toothless, requiring nations to implement national laws that prohibit foreign bribery, but doing little more. Only a handful of countries are effectively enforcing their anti-bribery laws. Which ones? Well, the answer seems to...
The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron's far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties to Ecuador and...
Like thousands of other high school kids, today is AP Comparative Government exam day in the Alford household. According to the AP College Board, "The course aims to illustrate the rich diversity of political life, to show available institutional alternatives, to explain differences in processes and policy outcomes, and to communicate to students the importance of global political and economic changes." But in order to move the discussion from the abstract to the concrete, AP Comp. Gov. students are required to study six--and only six--representative countries. Can you guess the six countries chosen as suitable for comparison? And could you answer the short- or long-essay questions these high school whiz kids are required to answer? Details after the jump:
The Liberty Forum has just posted a debate on sovereignty in the age of globalization between John Yoo, John Cerone, and yours truly. Here's a taste of the exchange, which I encourage you to read in its entirety. From John Yoo's post: Globalization has led to (1) the explosive growth in international trade; (2) the swift creation of international markets in...
In honor of Ozzie Guillen, the manager of the Miami Marlins, who was forced to apologize today to Miami's Cuban-American community for saying that he admired Fidel Castro's ability to avoid being assassinated by the U.S. for five decades, who said the following? I believe that there is no country in the world including any and all the countries under colonial domination,...
Here are some choice quotes from the ASIL annual meeting, all taken out of context for maximum effect: The real problem with cyber-security is that Viagra is too expensive. ~ Christopher Soghoian International arbitration is like a Jackson Pollock painting. There is order, but it takes an expert in fractal geometry to see it. ...
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.