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Search: Sosa

02 Oct

...the ATS. They argue, as did the majority of the Supreme Court in Sosa v. Alvarez-Machain, that the ATS was implicitly designed to allow certain tort claims to be brought without a separate statutory cause of action, and they cite various historical materials and events in support of this hypothesis. To address the requirement in modern doctrine of a positive law source for the cause of action, they also contend, as did the Court in Sosa, that the ATS should be construed as authorizing federal common law claims for certain...
02.10.12 | |

13 Mar

...Bradley’s chapter on the place of customary international law (CIL) in the federal law of the United States. The space available precludes my considering all of the subjects of Bradley’s chapter, and I will therefore confine my comments to two of them: first, the implications of Sosa v. Alvarez-Machain for the methods federal judges use in identifying rules of CIL; second, current controversies over the generation of rules of CIL as a matter of international (not American domestic) law. Much of the discussion of Sosa has focused on its analysis...
13.03.13 | |

08 Dec

...own precedents; and thirdly, practice and policy confirm that corporations can violate and have violated norms of international law. As to the first of these criticisms, we argue that, after Sosa, it is clear that an ATS cause of action — that is, the right to sue — arises under federal common law. Therefore, the reasoning of the majority in Kiobel, that unless a corporate defendant would be directly liable for its conduct under international law then it cannot be liable under the ATS, is contrary to Sosa and a...
08.12.11 | |

27 Mar

...state of international law,” to quote Sosa. The treaties are plain in this regard. Sosa also supports this view. It cited not only a criminal case about piracy, the original universal jurisdiction offense, but also Filartiga’s famous statement that “[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis—an enemy of all mankind.” (emphasis added). In one paragraph, Sosa thus connected criminal and civil universal jurisdiction. Factually, Filartiga involved a foreign plaintiff, foreign defendant, and foreign harm. Legally, the invocation of an...
27.03.12 | |

02 Oct

...Kennedy appeared concerned that Respondents were asking the Court to overturn Filartiga and In re Estate of Marcos Human Rights Litigation, cases the Court’s 2004 decision in Sosa endorsed. Sullivan conceded that under her theory Filartiga was wrongly decided. (Justice Sotomayor thought Respondents were asking that Sosa itself be overruled—at least its reasoning, if not its actual holding.) This concern about Filartiga harkened back to Justice Kennedy’s observation during the first oral argument in February that in Filartiga there was no other place the suit could have been brought. A...
02.10.12 | |

26 Mar

...where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts. As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A....
26.03.12 | |

16 Oct

Mike wrongly assumes that, in the ATS context, federal courts can only apply rules of customary international law that are universally accepted; as he says with regard to the purpose mens rea in Article 25(3)(c), “[t]he drafters’ failure to agree on a broader liability regime is extremely suggestive that the underlying customary principles are in fact not universally accepted, as Sosa requires.” As I pointed out earlier, that standard is an invention of the amicus brief. Sosa does not require a customary principle to be “universally accepted”; it simply requires...
16.10.11 | |

19 Apr

...for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the ‘law of nations’ means as an international law term, it means something different in the hands of American courts that, under Sosa, are required to look not strictly to “traditional” international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens – but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute...
19.04.09 | |

02 Sep

...cases. First, the Court shows considerable sensitivity (if not irritation) about being asked to judge security actions taken by foreign leaders, especially in this case where the leaders were “faced with thousands of people taking to the streets in opposition.” Repeatedly invoking the Supreme Court’s call for caution in Sosa, the Court emphasizes that the ATS is “no license for judicial innovation” and that “judicial restraint is demanded.” Moreover, the Court observes that “We know and worry about the foreign policy implications of civil actions in federal courts against the...
02.09.11 | |

23 Feb

[Tom Lee is a professor of law at Fordham Law School.] On February 16, 2007, the Sixth Circuit (Keith) published a unanimous opinion in Tavaeras v. Tavarez, a suit brought under the Alien Tort Statute (28 U.S.C. 1350). That hoary and storied statute states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The Sixth Circuit understood the Supreme Court’s holding in Sosa v. Alvarez-Machain, to...
23.02.07 | |

29 Aug

...Position, which suggested customary international law’s status as federal common law does not survive Erie absent authorization from the political branches to treat it as such. Dozens of articles–launching a whole “new sovereigntist” movement in U.S. foreign relations law–followed, not to mention a major Supreme Court decision in Sosa v. Alvarez-Machain. Indeed, last year, we here at Opinio Juris hosted a workshop on Professors Bradley and Goldsmith’s latest work with David Moore, “Sosa, Customary International Law, and the Continuing Relevance of Erie.” Certainly, Green is not the first to respond...
29.08.07 | |

06 Mar

...connection (as in universal jurisdiction). In other words, when Congress authorizes application of international law, it should be presumed to authorize application of all of international law, including the relevant international law of jurisdiction, which may contemplate extraterritoriality. This argument could prove attractive to the Court in Kiobel for a couple of reasons: (1) It would allow the Court to decide Kiobel consistently with Sosa and other pre-Morrison cases like Filartiga that have already endorsed, whether affirmatively or by implication, the application of the ATS to foreign conduct and harms....
06.03.12 | |