Search: Sosa

03 Oct Kiobel Roundtable: The ATS Was About Protecting Safe-Conducts

[Thomas H. Lee is Leitner Professor of Law at Fordham University School of Law. He is currently a visiting professor of law at Harvard.] I agree with Meir that piracy is a “red herring” and am writing to elaborate on his thoughtful remarks. The thing that troubles me most about how the Court is thinking about this case is that it continues to accept the Sosa statement that the ATS is 2/3 about piracy and ambassadorial infringements, but not thinking at all about the 1/3 nebulous “safe conduct” violation which...

22 Oct What is Feinstein Thinking in Amending the ATS?

...(available in the Congressional Record here, here, and here). The essence of her motivation was that Sosa did not address which international law claims by foreigners should be heard in U.S. courts and the standard of liability for U.S. companies facing these human rights charges. The Court expressly invited congressional guidance and Senator Feinstein indicated that she believes it is the burden of Congress to “pass legislation that settles on a reasonable legal means that plaintiffs and defendants alike can rely on to litigate their differences.” (Thanks to Ed Swaine)....

21 Aug On Executive Statements of Interest

...find the absence of a Statement of Interest as an indicator of justiciability under the political question doctrine. Alperin, Rio Tinto, and now Gross (not to mention Sosa) are all important recent decisions on the importance of Executive Statements of Interest. They suggest that the State Department must carefully consider its decision not to file a Statement of Interest (or in the case of Rio Tinto, the decision to file a Statement of Interest that is not unequivocally in opposition) and seriously risk a finding that the case is justiciable....

02 May DSK Court Dodges Domestic Status of Customary International Law Question

...Dodge) see it as a general federal common law applicable in all cases. It is worth noting that the Court does not read Sosa as necessarily resolving this question, and simply holds that a congressional statute would override any customary law anyway, which he found was the case here. This seems like a sensible way to proceed, and the judge should get credit for not being wowed by the unusual customary law claim. In theory, DSK could appeal to a federal court on the theory that customary international law creates...

22 Apr U.S. Supreme Court Holds that Corporations Can Be Immune from Claims of Torture Under Domestic U.S. Law

...corporate liability question. Courts are left to ponder whether implying corporate liability would fit within their ATS federal common law making powers. The Supreme Court has instructed them, in Sosa, to limit their use of international law to only those most universal and uncontroversial norms. Whether corporate liability is one of those international norms has been the main field of dispute in the Kiobel briefing. But even if it is not an international norm, the court still faces the question as to whether Congress would have wanted to imply a...

28 Mar Hamdan’s Conspiracy Theory – A Debriefing

...piece on the Yale Law Journal’s Pocket Part, the government’s evidence could not be farther from meeting the standards advanced by the SG himself only two years ago in Sosa v. Alvarez Machain. The second argument, and the one made by Prof. Katyal today, is that if practice from 1916 is dispositive of this issue then the government’s entire case falls away: The laws of war, as they were understood during the Civil War, WWI, or WWII surely did not contemplate the “new war” we are now facing. Indeed, the...

25 Oct The Feinstein Amendment and Presidential Waivers

...to courts to dismiss pending litigation could not be constitutionally imposed absent a statute. (p. 220). This suggests that the President believed he did not have inherent authority to preclude litigation that is against the national interest. The presidential waiver provision in the Feinstein Amendment appears to be a version of delegated ad hoc jurisdiction stripping. It is fairly radical in that it provides express delegated authority to dismiss any pending ATS litigation that is determined to be against the national interest. Applying the provision to the facts of Sosa,...

26 Oct Feinstein Withdraws ATS Amendment

Senator Feinstein has withdrawn her bill that would amend the Alien Tort Statute. Her terse letter to Senator Specter states that while the legislation was designed to address concerns about the clarity of the existing statute in light of Sosa “I believe that the legislation in its present form calls for refinement in light of concerns raised by human rights advocates, and thus a hearing or other action by the Committee on this bill would be premature.” A copy of her withdrawal letter is available here....

24 Feb Medellin’s Mischief, or Does International Law Stop at the Land’s Edge?

...perspectives through which to view treaty enforcement by U.S. courts, and possible alternative mechanisms to bind the political branches to comply with international legal commitments. Three observations might illuminate directions for future research. First, it is true that Sosa v. Alvarez-Machain focused on the law of nations prong of the Alien Tort Statute rather than its treaty prong, and so perhaps falls outside the scope of this particular analysis (77). It is also true that debates about the use of foreign and international sources in U.S constitutional interpretation do not...

08 May The Empire Strikes Back – Debating the Origins of the Customary Laws of War

...or—as the U.S. letter asserts—must practice turn more on an examination of what states actually do (or don’t do). In other words, does custom emerge from rhetoric or actual conduct? Of course, this is not a new debate, but one that’s plagued international lawyers for some time. It’s also a question courts frequently face. Indeed, one can see the judicial version of the US-ICRC debate in the contrasting views of custom expressed by the Supreme Court in Sosa v. Alvarez-Machain and Judge Kaufman’s views in Filartiga v. Pena-Irala. Finally, on...