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Search: Sosa

29 May

...actually caused? I say this even though I am not a big booster of the ATS. I prefer the approach taken to the ATS by Judge Bork in Tel-Oren v. Libyan Arab Republic and by Justice Scalia in Sosa v. Alvarez-Machain. John Bellinger may be right when he proposes revision of the ATS. (Oddly, although it is conservatives who are hostile to the ATS, the only lawmaker I know of who has proposed limiting the ATS is Senator Diane Feinstein. Does anyone know of any others?) Would there be any...
29.05.09 | |

03 Dec

...kidnapping was therefore neither here nor there. That matter was reserved for another day, when Dr Alvarez-Machain, after his acquittal on a submission of no case to answer (probably the wrong phrase - sorry), sued for damages. As is well known, that suit resulted in Sosa v. Alvarez-Machain, 542 U.S. 692. At that stage, the Supreme Court held that the abduction had not violated international cognisable under the ATCA, under the fairly demanding test set out in that opinion. It did not, however, apply international law as such (customary or...
03.12.07 | |

22 Nov

...and there is some slippage between precedent/case law and customary norms. The one doesn't necessarily imply the other. Simply put, CIL requires state practice + opinio juris, and in most cases criminal norms are not applied with a reciprocal sense of legal obligation (though some recent human rights constraints on criminal procedure may indeed stem from a sense of legal obligation). But substantive criminal norms rarely do (though it is possible). However, I'm unclear on what the rub of this argument is for purposes of ATS liability under Sosa. ATS...
22.11.11 | |

03 Oct

...to prosecute the Ustasha and the Vatican Bank.”) (internal citations and quotation marks omitted). Reading Vatican Bank to preclude any ATCA war crimes claims would work a major, and inadvisable, shift in our ATCA jurisprudence. It would create a clear circuit split with Kadic. And it would contradict Sosa, which confirmed the view of the ATCA contained in Kadic and other cases when it stated that “[f]or two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. It would take some explaining...
03.10.07 | |

04 May

Kenneth Anderson Second what Roger says above - great meeting, and my thanks to the organizers. Also, I share what Roger says substantively above. The meeting identified a number of instabilities in ATS jurisprudence, some of which are essentially Sosa-derived and thus fundamentally about US law. But two crucial ones were an important topic of discussion in the meeting and they are, so to speak, "prior" to Sosa in the sense that they are not about how US courts should address these questions, but instead go to the question of...
04.05.10 | |

22 Aug

John C. Dehn The logic of this opinion strongly resonates with a lesser-emphasized section of the Supreme Court's Sosa opinion---one that dealt with the so-called "headquarters doctrine" that had developed in the lower courts related to the Federal Tort Claims Act (FTCA). For those unfamiliar, the FTCA erects a jurisdictional bar to claims arising in a foreign country. The Sosa opinion clarified that a cause of action arises where the injurious act and actual injury occur. It rejected the notion that because some elements of the government's conduct were planned...
22.08.13 | |

25 Apr

...is this “It is notable, however, that the critical requirement at issue in the instant case—a receiving State’s obligation to inform a detained foreign national of his “rights” under paragraph 1(b)—is never itself expressly referred to as a “right.”” (p. 14) Of course it isn’t. It is a duty (note the use of the term “obligation”) imposed on the state, which creates a corresponding right in the individual to whom that duty is owed. The clerk was trying to be a little too clever. Sosa tells use that some duties,...
25.04.08 | |

21 May

Josh But see Sosa v. Alvarez-Machain. There the Supreme Court used similar reasoning to uphold the forcible abduction of a Mexican national suspected of murder in the face of the US-Mexico extradition treaty. While there certainly isn't the level of dispicablility in the case at issue, such reasoning leads to bad results when abused. M. Gross Sounds like the correct decision to me. Although, if I recall, the courts have upheld extraordinary rendition, so had he been stuffed in a trunk and flown to the US, it probably would have...
21.05.09 | |

06 Oct

...purpose. The other controversial aspect of the decision is that the Circuit adopted the alleged customary international standard to assess aiding and abetting liability whereas it could have simply applied the federal law standard. Sosa simply holds that US courts need to look to CIL to determine what are offenses against the law of nations - not that US courts must also apply those laws in the same way an international court would. Matt Schaefer One interesting argument that might occur in future cases is that the ICC treaty (and...
06.10.09 | |

18 Oct

...Berry points out that the only change made to the draft ATS before it was passed was to substitute the word "alien" for "foreigner," and argues that this change was made because in 1789 "alien" was used to include only foreign citizens residing in the United States, while "foreigner" was used more broadly to include all non-citizens. Joseph P. Mandala It is most likely that the decision will be reversed particularly because the Alien Tort Statute is gaining more ground. A cautionary application of the statute in Sosa case essentially...
18.10.09 | |

17 Apr

Daniel Thanks for this really interesting post. I was wondering if you might comment also on the possibility of raising a Sosa-like argument in state court that the common law recognizes causes of action for (certain) violations of the laws of nations. That was certainly the case at Blackstone's time, and I'm not sure why state courts would not have the power to hear common law claims for violations of at least the three types of violations of the law of nations that were cognizable under Blackstone's common law. Without...
17.04.13 | |

27 Apr

...U.S. law (and here I include customary international law as part of U.S. law per the Paquette Habana and Sosa, albeit with lots of room to debate what the content of this law is). Similarly, we wanted to counter charges that the Supreme Court must ignore all foreign law, even if lawyers may debate which sources to employ and how much weight to attach to them. In doing so, we weren't suggesting that all Koh's critics are isolationist, but I do think that some of them follow that tradition. And,...
27.04.09 | |