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Search: Sosa

11 Mar

...to ATS claims, as the Ninth and DC Circuits said in their 2011 decisions in Sarei v Rio Tinto and Doe VIII v Exxon Mobil. The presumption is a rule of statutory construction, but Sosa made clear that ATS claims are products of federal common law — the ATS just provides a basis for jurisdiction over the claims. Moreover, everyone seems to agree that the scope of ATS claims must include piracy, which means that the reach of the law must extend beyond U.S. territory. For the Court to use...
11.03.12 | |

02 Oct

...of litigation, the ATS would become superfluous. The concern with offending foreign countries can be dealt with largely through what Sosa referred to (in the infamous footnote 21) as “case-specific deference to the political branches.” Deference does not mean obsequiousness, but it does mean due regard. As in the sovereign immunity field, there remains a need to balance the vindication of individual rights with the preservation of peaceful and constructive foreign relations. Courts are part of this process. In this sense, debates about the ATS are proxy wars for ongoing...
02.10.12 | |

03 Nov

...entitlement to “make law” for the “entire planet.” Kleinfeld op. at 19431. Instead, and especially in light of Sosa, the ATS provides a domestic forum for claims based on conduct that is illegal everywhere, including the place where that conduct took place. It is no infringement on the sovereign authority of other nations, therefore, to adjudicate claims cognizable under the ATS, so long as the requirements for personal jurisdiction are met. * * * * We deal with the ATS, not RICO or a securities act. There are strong indications...
03.11.11 | |

14 Mar

...contends that these uncertainties are relevant to debates over the domestic status of customary international law, and I agree. I discuss this point briefly at the end of my chapter on customary international law. (I have also explored the uncertainties surrounding customary international law in other writings, including in a 2010 article with Mitu Gulati.) I also agree with Mark that the Supreme Court in Sosa seemed to demand that closer attention be paid to this issue, although I am not sure that the lower courts have heeded the call....
14.03.13 | |

17 Apr

...or indirect application of international law via common law doesn’t matter. All that matters from a prescriptive jurisdiction perspective is that the rule applied accurately reflects substantive international law, including as to liability. If it does, there is no concern about extraterritoriality, as the Court seems to accept: “The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S....
17.04.13 | |

18 Apr

...Kiobel case, nor would the Supreme Court have heard the Sosa ATS case in 2004, nor would various appellate courts have heard ATS cases over the past decade or so. Returning to the original question – will Kiobel have an impact on FCPA enforcement? The logic and rationale of many justices in Kiobel would sure seem to have direct bearing on certain aspects of FCPA enforcement, and indeed can be viewed as Supreme Court disapproval of certain aspects of FCPA enforcement. However, in order for judicial logic and rationale to...
18.04.13 | |

20 Apr

...the majority opinion failed to answer conclusively whether the ATS applies when there is some form of territorial hook, and argued that the Breyer concurrence may end up being the more influential one. Julian pointed out how Justice Breyer’s concurrence essentially read the ATS as an expression of the protective principle used to allocate prescriptive jurisdiction, and expressed surprise that Justice Breyer’s concurrence took a narrower stance than his 2004 concurrence in Sosa. So, where does this leaves human rights litigation against corporations? Peter argued how Kiobel does not spell...
20.04.13 | |

17 Dec

...‘nexus’ to the United States is weak, courts should carefully consider the question of exhaustion, particularly—but not exclusively—with respect to claims that do not involve matters of ‘universal concern.’… Because the district court did not analyze exhaustion as a discretionary matter, we remand for the district court to address this issue in the first instance.” The plurality opinion analyzed footnote 21 of Sosa, as well as the international standard of exhaustion to conclude that prudential exhaustion was appropriate in this case. The plurality concluded that this ATS case presented two...
17.12.08 | |

13 Dec

In 1965, as part of the Restatement Second, the American Law Institute published the original Restatement on the Foreign Relations Law of the United States. Twenty two years later in 1987, a new edition appeared – The Restatement (Third) on the Foreign Relations Law of the United States. Together, they’ve had an enormous influence on the courts; look at many of the major Supreme Court cases of the last several decades on foreign relations law – Sanchez-Llamas, Sosa, Empagram, Hartford Fire, Saudi Arabia v. Nelson, Dames & Moore, Sabbatino, etc.—and...
13.12.06 | |

17 Nov

I had the good fortune to attend, and participate in, Brooklyn Law School’s conference yesterday on Corporate Liability for Grave Breaches of International Law. It was good to have a chance, for instance, to argue with Professors Bill Dodge and Beth Stephens one more time about what exactly Sosa v. Alvarez Machain means this time with respect to corporations. But it was also illuminating to hear from scholars outside the foreign relations field, and especially from outside the United States, on other mechanisms for regulating corporations for severe international crimes....
17.11.07 | |

17 Jun

...words, the Court was unwilling to conclude that the alleged torture occurred in the context of an armed conflict such that Common Article 3 applied and could serve as the basis for the requisite international consensus required under Sosa. (This, in my view, is the weakest part of the decision). The Court also upheld the district court’s decision to dimiss the pendant tort claim raised under Israeli Law, finding that 28 U.S.C. 1367(c) gave it permission to do so. One of the more interesting parts of the opinion came from...
17.06.11 | |

23 Apr

...involving solely extraterritorial conduct, “the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Although the majority appears to exceptionalize piracy (“pirates may well be a category unto themselves”), such a reading is inconsistent with Sosa v. Alvarez-Machain which explicitly asked “who are today’s pirates?” The terms “pirate” or “piracy” appear in the various opinions in Kiobel 50 times. Perhaps it is time to address piracy directly, and not merely by analogy. Such could elucidate the “touch and concern” requirement applicable in ATS cases....
23.04.13 | |