In my offhand judgment, Justice Breyer’s argument about the ATS and its “fit” with the presumption [against extraterritoriality] has force. (The Chief has an answer, but it’s a very close call.) What this is actually about, though, is a monitoring problem; and on that, the Chief is right.
The ATS has become a playpen for a cabal of international law enthusiasts and plaintiffs’ lawyers. Couple the former’s wild-eyed global aspirations with the latter’s eagerness to drag corporations through our one-of-a-kind tort system, and it’s Katy, bar the door. The Chief’s rule blocks all that: if it happened abroad, that’s it. Justice Breyer’s position, in contrast, would compel the Court to monitor all the places and institutions where this stuff gets out of hand: the Ninth Circuit; the wildest district courts in the country; the folks who are in charge of the Restatement of Foreign Relations; and the people who crank up “customary” international law (which becomes “customary” when someone at Yale Law School says it is, and the Swedish Minister of Foreign Affairs agrees). If some foreign employees of a U.S. company sue other employees of that company over tortious sexual harassment at the company’s foreign plants, has the defendants’ conduct “substantially and adversely affect[ed] an important American national interest,” that of serving as a beacon of sexual equality in the world? You tell me.
To ask the Supreme Court to keep an eye on this is to declare surrender. So it’s good that the Court has drawn a line. Whether it’ll hold, we’ll see.
Posts Tagged ‘Alien Tort Claims Act’
SCOTUS: U.S. can’t play tortmaster-general to the world
This morning’s big Supreme Court decision in Kiobel v. Royal Dutch Petroleum was a huge win for good sense. While splitting 5-4 on reasoning, the nine justices unanimously rejected the lefty view of the Alien Tort Statute that had been popular on campus, in the foundation world, and so forth. Here’s my Cato take:
Just as the United States should not play policeman to the world, so our courts should not play tort-suit venue to the world. Today the U.S. Supreme Court unanimously and decisively buried the misguided, decades-long hope of some lawyers and academics that they could turn the Alien Tort Statute (ATS) into a wide-ranging method of hauling overseas damage claims into American courts. All nine Justices agreed with the Second Circuit that the statute does not grant jurisdiction for our courts to hear a controversy over alleged assistance in human rights violations outside the U.S. against non-U.S. plaintiffs by a non-U.S. business. A majority of five justices reiterated and relied on our law’s strong traditional presumption against extraterritoriality, that is to say, presumption against applying the law to actions that take place in other countries. While parting from this reasoning, four concurring justices nonetheless endorsed a view of ATS as applicable extraterritorially only to very extreme misconduct comparable to piracy, and also as sharply limited by considerations of comity with foreign sovereigns.
It is a good day for a realistic and modest sense of what United States courts of justice can successfully do, namely: do justice within the United States.
Notably, all nine Justices sidestepped the issue that had caused extensive angst among many popular commentators, namely whether the statute could be applied to corporations as distinct from natural persons. Other views: Ilya Shapiro, Cato (“an exceedingly complicated case with a relatively simple solution”); SCOTUSBlog; Julian Ku/Opinio Juris (“this means that the ATS wars over corporate liability are almost over…. A theory that the ATS can be justified in universal civil jurisdiction cases has been rejected, 9-0.”) and more (death of “universal civil jurisdiction” idea, and speculation that Breyer’s shift of ground to a narrower ATS rationale was an unsuccessful attempt to pick up Kennedy); Sarah Altschuller (reading opinions, “struck by amount of time that must have been dedicated to debate re: pirates and shipdecks”); Josh Blackman (getting all nine justices to agree on a personal jurisdiction question isn’t easy, but it happened here); Hans Bader; Roger Alford (ATS “as we know it is dead… [Kiobel] has destroyed an entire cottage industry”; transnational state-court torts and choice of law likely to rise in importance as replacement); Eugene Kontorovich (academics scoffed when “foreign-cubed” ATS lawsuits were called into question, yet all nine justices have now embraced that position); earlier here; Cato’s amicus brief. Disapproving reactions on the left from Alliance for Justice, Center for Constitutional Rights (which unsuccessfully invoked the ATS to sue bulldozer maker Caterpillar Tractor over the death of anti-Israel protester Rachel Corrie, a story mentioned in Schools for Misrule, which discusses law-school and foundation enthusiasm for the ATS), and Human Rights First. More on the recent ATS defense by Judge Pierre Leval, cited by Justice Breyer in his concurrence for the four liberals.
International law roundup
- Let’s hope not: is Kony case reconciling conservatives to International Criminal Court? [New Republic] Sea Shepherd case shows Alien Tort Statute can serve “conservative” as well as “liberal” ends [Eugene Kontorovich, earlier]
- “Why the U.S. Shouldn’t Sign On to Empty Human Rights Treaties” [Eric Posner, Slate, earlier]
- Or maybe non-empty? U.N. Convention on Rights of Persons with Disabilities said to require enactment of strong Europe-wide equivalent of ADA [Disability Law]
- A questionable free speech victory at the U.N. on defamation of religion [Jacob Mchangama]
- Tales of “independent” court reports that weren’t: “Chevron-Ecuador case expert switches sides” [SF Chron, December]
- New Kenneth Anderson book getting lots of recommendations: Living with the UN: American Responsibilities and International Order [Amazon]
- “Revive Letters of Marque and Reprisal to Launch Cyber-Attacks Against China?” [Julian Ku/OJ]
Supreme Court roundup
- Decline Medicare benefits, lose your Social Security? Tell it to SCOTUS [Trevor Burrus and Kathleen Hunker, Cato]
- “Castle” protections against official home intrusion aren’t forfeited just because you’re a renter [Ilya Shapiro and Sophie Cole, Cato]
- Was Hitler a pirate? Answer could shape SCOTUS Kiobel decision [Alison Frankel] Inside the effort to rein in the Alien Tort Statute [Reuters] Editorials urge limiting ATS [WaPo, WSJ] More: Bainbridge, Kenneth Anderson, roundtable at Opinio Juris, Ted Frank.
- Major takings case (Arkansas Game & Fish Commission v. U.S.) argued at SCOTUS [Ilya Somin, Damon Root, Federalist Society with Richard Epstein, Gideon Kanner] Court also decides to hear important regulatory takings case, St. Johns River Waste Management District v. Koontz [Somin]
- On the supposedly pro-business Supreme Court [Stephen Richer, Forbes; Ted Frank]
- Previews of the Court term [Adam Freedman, Point of Law, Federalist Society/C-SPAN, Above the Law]
- Are we nearing a “constitutional moment”? [Michael Greve with responses from William Galston and William Voegeli, Law and Liberty]
International law roundup
- Human rights roulette: Senate could take up UN disabled-rights treaty in September [Stefano Gennarini, Turtle Bay and Beyond; earlier]
- Intense opposition from gun rights community slows drive for U.N. small arms treaty [David Kopel, Steve Hayward/PowerLine, Krayewski/Reason, Opinio Juris]
- SEC moves on complex, costly conflict minerals rule [Bainbridge, more, earlier]
- Series of Eugene Volokh posts takes up proposals to restrict reception of foreign law, including Islamic law, in American courts [Volokh Conspiracy]
- U.N. human rights establishment urges Iceland to crack down on gender-stereotypical speech [Volokh]
- Welfare rights, the U.N.-system way [International Labour Organization]
- When may American courts hear suits over international law violations on foreign soil? Cato files amicus brief in Kiobel v. Royal Dutch [Shapiro] SCOTUSBlog symposium on Kiobel and future of Alien Tort Statute;
- Damir Marusic reviews Aryeh Neier’s book on international human rights [American Interest]
International law roundup
- Top Europe court: workers who happen to get sick on vacation legally entitled to another vacation [Tabarrok]
- U.N. rapporteur presses “right to food but not so much you grow obese” on Canada [UN, earlier]
- “The Federal Government Can’t Give Itself More Power Just By Signing a Treaty” [Ilya Shapiro, Cato on U.S. v. Bond]
- Andrew Spalding on the Foreign Corrupt Practices Act (FCPA) as “unwitting sanctions” against poorer countries [Fla. L. Rev.] One big loss, one little win for DoJ prosecutors on FCPA [AmLaw, NLJ]
- Turkey of the sea? Opinio Juris debate and discussion on whether Law of the Sea Treaty is a good idea for U.S.; Doug Bandow, Cato; views of Defense Secretary Leon Panetta, Donald Rumsfeld, Heritage Foundation, Julian Ku; Jeremy Rabkin 2006 critique of the treaty; John Norton Moore defense.
- “Left Wing Sovereigntism! Public Citizen Assaults Investor-State Tribunals” [Julian Ku/OJ; my 1996 piece on the Loewen case, which led to an international tribunal complaint by the victimized defendant]
- “Taming International Law With Presidential Supremacy” [Ted Galen Carpenter, LLL, Yoo response, earlier, AEI event]
- Alien Tort Statute: “U.S. Government Stabs Kiobel ATS Plaintiffs in the Back” [Ku, FedSoc]
- More on the really amazingly bad idea of turning Internet governance over to the United Nations system [Gordon Crovitz,”The U.N.’s Internet Power Grab,” WSJ; C-SPAN video of May 30 Free State Foundation event; Reason; Daily Caller and more, Instapundit and more on House reaction; earlier]
International law roundup
- U.N. rapporteur lectures U.S. on Indian rights, calls for “some form of land restoration” [IPSNews] “So, the UN Wants the U.S. to Return Land to Indian Tribes…” [Claudia Rosett] In Chapters 10 and 11 of Schools for Misrule, I discuss the growing cooperation between Indian land-claim activists in this country and international organizations both within and without of the U.N. system. (More: I expand theme into a Daily Caller piece).
- “Union Uses NAFTA To Fight Alabama Immigration Law” [Sean Higgins, IBD]
- “UN hunger expert investigates Canada” [Hillel Neuer, National Post]”Everyone’s grievances can thus be transformed into human rights violations” [Jacob Mchangama and Aaron Rhodes, Freedom Rights Project, PDF]
- Admittedly, at a “lefty Quaker school in the Northeast”: “You know international law is getting some traction when your fourth-grader is being taught about the Convention on the Rights of the Child.” [Peter Spiro, OJ]
- New Third Circuit opinion in remanded U.S. v. Bond case, which tested limits of treaty power, could tee up issue for another SCOTUS outing [Spiro/OJ, FedSoc Blog, Liberty and Law; earlier]
- “Canada’s Much Better and Very Different Alien Tort Statute” [Ku/OJ]
- Implementation of United Nations’ Convention on the Rights of Persons with Disabilities (CRPD) could draw inspiration from U.S. experience with institutional reform lawsuits [Michael Perlin via Bagenstos]
International law roundup
- Supreme Court orders rebriefing in Kiobel v. Royal Dutch Petroleum case, could address extent of permitted extraterritoriality in Alien Tort Statute [Kenneth Anderson/Volokh quoting John Bellinger, Point of Law featured discussion, Ilya Shapiro on Cato brief]
- UN “food rights” official: trade, investment pacts should not go forward without “human rights impact assessments” [De Schutter; his paternalist food-policy agenda] UN panel reviews Canada’s record on race, lectures on need for more multiculturalism [OHCHR]
- Courts still reluctant to restrain parents’ physical discipline of kids, but UN Convention on the Rights of the Child, for which ratification push is expected in the U.S. this year, could change that [Elizabeth Wilson, ConcurOp]
- Golan v. Holder: “Copyright Case May Have Profound Effect on Treaty Power” [Ilya Shapiro, Jurist]
- Web accessibility litigation spreads to UK [Disability Law, related on role of U.N. Convention on the Rights of Persons with Disabilities, earlier and background]
- New tone under Ambassador Joseph Torsella: “Obama Comes Around on U.N. Reform” [Brett Schaefer, NRO]
- Reviewing new John Fonte book Sovereignty or Submission, Temple lawprof Peter Spiro contends that trend toward transnational governance isn’t “reversible…. It’s mostly wishful thinking to suppose that we can stick to the vision of the Founders.” [OJ, earlier here, etc., and see chapters 11-12 of Schools for Misrule]
- Dante’s Divine Comedy “offensive and should be banned,” per UN anti-discrimination consultancy [Telegraph]
Supreme Court to review Alien Tort Statute
In the case of Kiobel v. Royal Dutch Petroleum, scheduled for argument Tuesday, the Supreme Court will consider curbing the modern scope of the Alien Tort Statute, which asserts U.S. jurisdiction over various human rights controversies arising within the bounds of other countries. [Reuters, earlier] Considering that it amounts to the Law of the Hegemon, the Statute is oddly popular in some Left circles [Kenneth Anderson/Volokh] European governments (Germany, Great Britain, the Netherlands) have filed amicus briefs on the defense side [John Bellinger, Lawfare; more, WaPo]
More: The New York Times’s Room for Debate discussion includes a contribution by my Cato colleague Ilya Shapiro. And Point of Law is having a featured discussion on the case with David Weissbrodt of the University of Minnesota and Julian Ku of Hofstra.
September 29 roundup
- ABA, NFIB protest NLRB “persuader” disclosure regulations [ABA Journal, Schwartz, earlier] Might regs place replacement workers’ home addresses in hands of unions? [Labor Union Report, Boyle, Daily Caller]
- Swiss animal welfare law is catalyst for founding of guinea pig matchmaking service [Spiegel/Cowen]
- “Jail time for overdue library books” [Lowering the Bar]
- Busybody lawprof (at a different law school) continues to sue Catholic U. demanding coed dorms [WSJ Law Blog, Mystal/AtL]
- So does air pollution cause childhood asthma, as the American Lung Association claims in its ads? [Hayward] “Obama’s Smog Standard Capitulation Enrages Environmentalists” [AW]
- A look inside the Shell Nigeria Alien Tort cases [Goldhaber, AmLaw]
- In the mail: Garner’s Dictionary of Legal Usage (Bryan Garner)