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Search: Sosa

17 Jul

...he proposed in Kiobel – an interest of the United States, including its interest in not harboring persons or assets of the “common enemies of mankind.” Over at Volokh (in a lengthy post that I haven’t cross posted here because it’s mostly background on the ATS that would not interest OJ readers), I suggest that this reproduces the same basic problem as the Sosa test for restricting causes of action: the test is impeccable in theory, but unhelpful in practice. Why? On either Sosa’s restrictive test (norms of same content...
17.07.13 | |

21 Sep

...abuses under the ATS’s jurisdictional grant. But not all ATS litigation is about corporate liability. To the contrary, the Second Circuit’s landmark opinion in Filartiga v. Pena-Irala involved an individual human rights violator, and cases against individuals continue to be filed under the ATS and the Torture Victim Protection Act of 1991. It is important not to lose sight of these cases, which the Supreme Court explicitly approved in Sosa v. Alvarez-Machain (2004). Second, whether or not the ATS is good policy, the jurisdictional grant it embodies must be interpreted...
21.09.10 | |

01 May

...his hearing had been next week rather than this.) Less visibly, Garamendi, Crosby, and Sosa, where Souter wrote for the majority on foreign relations federalism and the Alien Tort Statute, are where one might see an altered dynamic. Sosa’s split-the-difference caution might be up for grabs, with a likely return of the ATS to the docket rather than later. In Crosby and then Garamendi, he worked from old-line premise of federal supremacy. That carried the day in Garamendi by only a single vote, with Ginsburg, Stevens, Scalia, and Thomas in...
01.05.09 | |

27 Mar

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law] The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted...
27.03.12 | |

19 Jan

Samuel Morison, Appellate Defense Counsel with the Office of the Chief Defense Counsel, Department of Defense, has posted a superb new esssay on SSRN entitled “Accepting Sosa‘s Invitation: Did Congress Expand the Subject Matter Jurisdiction of the ATS in the Military Commissions Act?” Here is the abstract: The Alien Tort Statute (ATS) provides a federal forum for aliens to seek tort damages for certain violations of customary international law, including war crimes. In Sosa, the Supreme Court admonished the lower courts to exercise caution when creating new causes of action...
19.01.12 | |

11 Oct

...as to the mental state required for aiding and abetting, establish a universal undisputed international law rule for ATS purposes (that being the standard set by Sosa, as explained in my prior post) — let alone one that can be translated uncritically from the ICTY context to the very different context of claims that engaging in commercial transactions with human rights violators amounts to aiding and abetting the violations. Kevin objects to a couple of these arguments, but I don’t find his objections well-founded. Kevin first complains that the brief...
11.10.11 | |

07 Nov

...his 2004 address to the American Society of International Law, in debating Justice Breyer in 2005, and again in his 2006 Keynote Address to the American Enterprise Institute. In Lawrence v. Texas he wrote that “constitutional entitlements do not spring into existence … because foreign nations decriminalize conduct.” More recently, in Sosa v. Alvarez-Machain Scalia railed against the internationalist position: “The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of...
07.11.07 | |

18 Apr

...latter of which does not provide “causes of action” as such). As the first part of the majority’s opinion acknowledges, the presumption against extraterritoriality cannot apply in a literal fashion to the ATS, because the statute is “strictly jurisdictional.” The majority opinion deals with the hybrid quality of ATS claims (which translate certain clearly defined international norms into federal common law causes of action) by treating ATS claims like any other claim brought under a federal statute. This departs from the majority’s approach in Sosa, which took the more nuanced...
18.04.13 | |

20 Apr

...wrestled with in Sosa. WHICH international norms, if any, can be applied in ATS cases. On that issue, the Court did about the best it could do. Which norms Congress intended to be included in the scope of the ATS is not entirely clear. However, I believe its conclusion is the only one potentially justified. I believe that it is fair to say, as Sosa basically did, that there are some norms that exist between states but may be derivatively applied between individuals. As you say, international law generally provides...
20.04.09 | |

13 Mar

...have the specific provisions of Articles II, III, and VI of the Constitution, the Alien Tort Statute (ATS), the general federal question statute, the statute granting the Supreme Court appellate jurisdiction, etc. Each has its own text and its own history, and the answer to whether customary international law falls within the scope of one provision may be quite different from the answer to whether it falls within the scope of another. The Supreme Court acknowledged this in Sosa v. Alvarez-Machain when it held that federal courts could hear federal...
13.03.13 | |

02 Oct

...pirates on the high seas, and therefore should apply to modern day analogues to pirates (“Hitler, Inc.”); 2) The ATS was applied extraterritorially in Filartiga or similar cases, and therefore should continue to be read to do so. The second argument doesn’t get you all that far, since the extraterritoriality issues weren’t raised in those cases, or in Sosa. Only the first argument offers a theory of the ATS’ purpose, but that theory fails to draw on actual historical evidence about the ATS. The best evidence is not any case...
02.10.12 | |

19 Oct

...the territorial locus of activities. Jurisdiction was satisfied by having (only) a foreign plaintiff and a violation of the law of nations or a treaty of the United States. Sosa v. Alvarez-Machain put some (delphic) limits on the nature of the “law of nations” violations that had to be at issue, but those were in terms of subject matter, not where the alleged violations took place or by what kind of a defendant. Kiobel made territory, contacts, presence, nationality of defendants an issue running beyond beyond Sosa‘s subject matter constraints....
19.10.13 | |