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Search: Sosa

17 Apr

One idea that Kiobel has put to rest (at least here in US courts) is the idea that the ATS could be fairly read as a grant of universal civil jurisdiction. On this theory, the ATS could be applied to overseas activities if the nature of the alleged action was so heinous as to rise to the level of a universally proscribable crime (see here for Donald Donovan and Anthea Roberts’ take on this). The Court seemed to take this idea pretty seriously in Sosa v. Alvarez-Machain. At least, Justice...
17.04.13 | |

24 Feb

The U.S. Court of Appeals for the Second Circuit has affirmed a lower court opinion dismissing a lawsuit brought seeking damages for the U.S. military’s use of Agent Orange during the Vietnam War (Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co). For me, the most interesting and doctrinally significant part of the decision is the Second Circuit’s application of the “Sosa” standard for recognizing customary international law claims under the ATS. The Court, very plausibly in my view, held that international law at the time of the...
24.02.08 | |

09 Aug

On Monday the Ninth Circuit issued one of the most important decisions interpreting the Alien Tort Statute since Sosa. In Sarei v. Rio Tinto, the Ninth Circuit addressed whether corporate liability can apply to human rights abuses committed by Papua New Guinea (“PNG”). Plaintiffs allege that Rio Tinto and the PNG government quelled an uprising in 1990 that led to a ten-year civil war with “PNG allegedly committ[ing] atrocious human rights abuses and war crimes at the behest of Rio Tinto, including a blockade, aerial bombardment of civilian targets, burning...
09.08.06 | |

23 Apr

...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...
23.04.13 | |

04 Feb

The Second Circuit last week rendered another important ATS decision addressing some of the most troublesome issues relating to human rights litigation against corporate defendants. In the case of Abdullahi v. Pfizer, the Second Circuit was faced with the question of whether involuntary medical testing on humans violates international law. Perhaps the most significant part of the decision was the spirited debate between the majority and the dissent over what constitutes actionable customary international law under Sosa. Scholars have long struggled with the Paquete Habana versus Filartiga approach to finding...
04.02.09 | |

09 Jul

...Court’s Sosa holding: We further conclude under our precedent that this court should address Exxon’s contention on appeal of corporate immunity and, contrary to its view and that of the Second Circuit, we join the Eleventh Circuit in holding that neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. I have occasionally described the controversy over corporate liability as the “hinge” in the ATS. Meaning that the ATS creates...
09.07.11 | |

06 Mar

...the first place; my view is that those are more widely understood as background assumptions than these other less visible incentives problems, and I think the ones I raise here are more important than commonly understood, so I concentrate on them. This problem of pushing out pretty good companies that are subject to real human rights pressures in a regulatory way – provided that they don’t conclude that the risk of damages, bad publicity, etc., makes it more prudent to sell to Chinese companies – is exacerbated by Sosa standards,...
06.03.12 | |

10 May

...federal courts to recognize any ATS torts beyond the initial three? Sosa answered the question with a big "maybe" (the door was left ever-so-slightly ajar). Without specifying precisely what additional torts (if any) could be recognized, the Court set limits beyond which the federal courts could not go. The Court indicated that these additional torts (if any) would be some subset of customary international law, and it unanimously concluded that the claims raised by the plaintiff in Sosa were not included within that subset. So despite what Sosa said about...
10.05.13 | |

03 Oct

...ATS claims arising in the territory of foreign states would require rejecting thirty years of ATS litigation, including the holding of Filártiga v. Peña-Irala. As Justice Kagan explained, it would also require abandoning the reasoning of the Court’s 2004 decision in Sosa v. Alvarez-Machain. Justice Scalia pointed out that applying the presumption against extraterritoriality would bar claims arising on the high seas as well as those arising in the territory of a foreign state, despite Sosa’s indication that the ATS was intended to apply to piracy, an international crime that...
03.10.12 | |

01 Mar

...even if the question of corporate liability is controlled by domestic law (i.e., federal common law). As we argued at length in an amicus brief we filed in support of the respondents, corporate liability is not automatic under federal common law. For example, the Supreme Court has held that there is no corporate liability for implied federal common law actions under Bivens, which are similar in kind to the implied federal common law actions that the ATS empowers federal courts to imply under Sosa. And there are several good reasons,...
01.03.12 | |

28 Sep

...were formerly of exclusive domestic concern.” That line has been dropped, as has the characterization of CIL (once a trope of revisionist scholarship) as “vague.” In the more recent piece, the only instrument deemed “vague” is the Constitution itself. Gone also are implications that the “world community” (emphasis in original) is some shadowy, alien entity seeking to undermine our democratic autonomy. So I see the Sosa piece as, in effect, hoisting a white flag on the larger question of whether CIL and international law generally have a place in US...
28.09.06 | |

21 May

...consistent and coherent body of case law. Second, the Harlow rule is substantially similar to the “Sosa test” that courts apply to determine whether a plaintiff has a federal common law cause of action under the ATS. See Sosa v. Alvarez-Machain (2004) (holding that plaintiffs can bring federal common law claims under the ATS only for violations of a sub-set of international law norms that have “definite content and acceptance among civilized nations”). In essence, Sosa instructed the lower courts not to recognize a federal common law cause of action...
21.05.12 | |