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Search: Sosa

18 Sep

...the Supreme Court will have to say something at some point. But I do find it striking that this question is logically prior to Sosa; meaning that you only get to all the Sosa criteria and requirements once having answered this still more basic question that Sosa touched in the famous footnote but did not address. John C. Dehn I agree in substance with Kevin. My take, for what it is worth, is that I think it is far too simplistic to say that international law must identify who may...
18.09.10 | |

27 Feb

...the Alien Tort Statute after Sosa v. Alvarez Machain, but given the language in that opinion, I suppose it is safe to assume piracy is indeed an acceptable ATS action. I wonder more about Cetacean’s basis for a preliminary injunction pursuant to violations of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the Convention on the International Regulations for Preventing Collision at Sea. I am going to assume the Court found the former two treaties self-executing, but a little analysis here would have been...
27.02.13 | |

30 Aug

...Sosa or via Iranian law, not to mention the possibilty of losing it all under the Act of State Doctrine. I’m not terribly surprised by the case’s outcome, especially given DOJ’s amicus position favoring Iran (not something you see everyday). But, it does highlight an interesting question about why treaties provide private causes of action in the first place. Do they simply act as an alternative means to ensure U.S. treaty compliance akin to theories of private attorneys general that underpin statutory private rights of action? In other words, is...
30.08.08 | |

23 Sep

...a remedy that is being enforced and not domestic law. See also Paust, Kiobel, supra at 20-21, 23. Further, it is international law over which there is a universal jurisdictional competence of the U.S. and other countries. 3. Indeed, if Sosa ruled that the ATS does not create a cause of action but the right to an effective remedy can arise under international law, was Chief Justice Roberts correct when stating "[t]he question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided...
23.09.13 | |

06 Jul

because the ATS is a comity statute. Second, Sosa's requirement of specificity is misleading. SCOTUS in Sosa used U.S. v. Smith for defining the level of specificity required, but Smith established what many would consider a very low specificity standard. Recall that the Smith court only used British law and commentaries for defining the international crime of piracy as merely "robbery upon the sea." Third, the court and some commentators are conflating rights and remedies. As a matter of law, a legal right is not insufficiently specific because it does...
06.07.07 | |

28 Feb

...threshold is which law determines whether corporations are liable.” (Tr. at 32.) However, I disagree with her argument that “corporate liability” is a “substantive norm,” and that the question of whether a natural person’s conduct can be attributed to a corporation for the purpose of imposing civil liability is necessarily governed by the same source of law as the standard for aiding and abetting, or the state action requirement addressed in footnote 20 of the Sosa opinion. Sullivan argued that all three of these questions (corporate liability, aiding and abetting,...
28.02.12 | |

10 Jul

...corporations did not use such weapons. What is particularly remarkable about the decision is that the federal district court does not make a single reference to Sosa in the entire discussion of the alleged international law violations and the numerous claims under the Alien Tort Statute. Here is an excerpt: (Continue Reading) Plaintiffs are a proposed class of military servicemen or civilian employees of United States Department of Defense contractors who were deployed in the Persian Gulf region during the 1991 Gulf War. They seek relief for damages sustained as...
10.07.06 | |

25 Jul

...Dodge views the Sabbatino case in terms of customary international law as federal common law. Some of this felt a-historical — the ghosts of the Medellin and Sosa future looming over the narrative – and it also left me wanting a broader perspective (even just doctrinally). We might think of Sabbatino as a Cold War case, for example (to pick up on Mary Dudziak’s broader point about this volume made at an ASIL Annual Meeting Panel), or about the rise of the administrative state, increases in executive power, doctrinal developments...
25.07.11 | |

14 Feb

Justice Scalia’s passing comes as a shock and is generating tributes across ideological lines. Indeed, whether you agreed with his opinions or not (and I was not a fan of his thinking on cases like Sosa or Bond), Justice Scalia’s opinions deserved to be read. Lines like “never-say-never jurisprudence” and “oh-so-close-to-relevant cases” are some of my personal favorites. Readers should feel free to add their own in the comment section. In the meantime, I wanted to pay tribute to a side of Justice Scalia that has garnered relatively little attention...
14.02.16 | |

03 Nov

...that the attempted attack on the frigate USS Nicholas can be prosecuted as piracy. Judge Davis cited Sosa v. Alvarez-Machain as support for his view that the customary international law to be applied by U.S. courts can evolve over time, and makes extensive use of the work of past Opinio Juris guest commentator Eugene Kontorovich. This decision is not subject to appellate review until after the trial, but my sense is that the district court opinion is intended to aid the Fourth Circuit in reaching what I think is the...
03.11.10 | |

10 Mar

If you have not been able to keep up with the stream of posts on Opinio Juris this week, we are pleased to offer you a weekend roundup. Three topics and a symposium fought for your attention. First, the US Supreme Court hearings in Kiobel v. Royal Dutch Petroleum continued to provide food for thought, particularly after the Court’s order on Monday to re-open the argument on the specific issue of extra-territoriality. Following up on discussions last week, Julian Ku pointed to the importance of Sosa. Ken Anderson argued that...
10.03.12 | |

26 Jun

...adjudication. Especially if the country of the court has no direct connection the issue, I am skeptical that such a suit would help matters much. This does not mean that I think there is absolutely no role for foreign courts. In the non-criminal realm of torts claims, I think there is some role for courts and that the U.S. Supreme Court’s decision in Sosa was an attempt to strike such a balance. Here, I think that the Spanish legislators are attempting to strike a similar balance in which the rule...
26.06.09 | |