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19 Apr

[Ishai Mooreville is an attorney at Baker & Miller PLLC, Washington, DC. His forthcoming article on the 1795 Bradford Opinion regarding the Alien Tort Statute can be found here.] The opinions expressed in this article belong to the author alone, and the author has not received any compensation from any party for writing this article. The question of personal jurisdiction over the defendant in Kiobel, which was raised during oral argument and mentioned in passing in Justice Breyer’s concurrence, may have had a significant effect on the outcome...
19.04.13 | |

22 Apr

“[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” That is the operative language in Kiobel. Which raises the question, if mere corporate presence is not enough, what kind and how much territorial activity within the United States is enough? After Kiobel, that will be a critical question for future...
22.04.13 | |

25 Mar

Thanks to Marty for his pointer on the decision and his instant analysis (which despite being instant, is also still quite interesting). Throughout the day today and into tomorrow, Opinio Juris will post thoughts and comments on the Medellin decision from leading commentators and scholars, in addition to (of course, our substantial “in-blog” expertise. Stay tuned!...
25.03.08 | |

16 Sep

[Stephen Tierney is a Professor of Constitutional Theory, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.] In the Edinburgh Agreement of 2012 the United Kingdom Government committed itself to respect the outcome of the Scottish independence referendum. This suggests that, in the event of a Yes vote, the transition to independence will be relatively straightforward, as will the pathway to Scotland’s international recognition and membership of the United Nations – see here. How then would Scotland’s move to statehood be characterised under international law?...
16.09.14 | |

24 Apr

[Milan Markovic is an Associate Professor of Law at Texas Wesleyan University School of Law.] When the Supreme Court originally granted certiorari in Kiobel, many feared that it would bar ATS suits against corporations entirely. The Supreme Court’s actual decision bars ATS claims that do not “touch and concern” United States territory. I tend to agree with Marty Lederman that there are at least three categories of ATS cases that might survive Kiobel, but even if Kiobel requires substantial conduct on U.S. territory, the decision should not alter...
24.04.13 | |

10 May

...the relevant conduct-regulating rule comes from international law and thus already applied when and where the activity underlying the claim arose. The Court thus had to apply the presumption to what everyone agrees is a jurisdictional statute, and that application does indeed contradict the Court’s explicit refusal to apply the presumption to a jurisdictional statute in Morrison. I’ve decided to include most of these points in a symposium essay here if you are interested: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2246138 Stephanie Mandell Response...YOu may want to follow US v Ross Mandell and Adam Harrington out...
10.05.13 | |

02 Jun

[We are grateful to continue our discussion on Samantar with a comment from Prof. William Dodge of the UC Hastings College of Law. Please keep following us for more thoughts in future posts and click “Related Posts” to see earlier contributions on this question.] Like my colleague Chimene Keitner, I wrote an amicus brief supporting respondents (co-authored with Mike Ramsey), and I too am happy with the result in Samantar. Although Curt Bradley’s post magnanimously notes that his position lost 9-0 in Samantar, it would be wrong to...
02.06.10 | |

03 Jun

[Prof. Beth Stephens of Rutgers Law School at Camden has litigated and written widely on related issues. Additionally, she served a counsel for one of the (victorious) respondents in the Samantar case. We are of course honored that she is able to share her views with us. Again, a reminder that “Related Posts” will send you to a collection of all of the posts on this topic.] The Supreme Court decision in Samantar v. Yousuf put to rest to a line of Circuit court decisions that has baffled...
03.06.10 | |

10 Sep

We have invited several academic luminaries to post here at Opinio Juris beginning early next week about the Scottish independence referendum that will be held next Thursday, September 18th. As we have done in the past with other symposiums, we also welcome other academics to submit guests posts for possible publication. We particularly welcome Scottish, British, EU and state succession experts. We will focus on the international legal aspects of the Scottish referendum, not the political or economic implications of the vote. We can’t guarantee we will publish every post...
10.09.14 | |

15 Sep

[David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law.] If the Scottish people vote in the majority on September 18th to become an independent nation, then a host of legal issues will descend immediately upon Holyrood, where the Scottish Parliament sits in Edinburgh, and Westminster, the legislative center of the United Kingdom Government in London. Some of these issues can be overcome if there is a willingness to negotiate in good...
15.09.14 | |

16 Sep

[Jure Vidmar is a Leverhulme Early Career Fellow in the Faculty of Law and Research Fellow of St John’s College, Oxford. Some arguments made in this post are further elaborated on in this article.] The Treaty on European Union (TEU) now gives member states an explicit right to exit the EU and provides for a mechanism that makes this right effective. However, the TEU does not directly regulate the future relationship between the EU and a territory which is seceding from a member state. If Scotland votes for...
16.09.14 | |

23 Apr

[Roger L. Phillips is an international criminal law practitioner. He also maintains Communis Hostis Omnium , a blog about maritime piracy. This post is cross-posted there.] The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of...
23.04.13 | |