Tag Archives: Alien Tort Statute

Do Over: The Supreme Court Takes a Second Shot at Kiobel

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In a move reminiscent of Citizens United, the Supreme Court has agreed to reargue Kiobel v. Royal Dutch Petroleum so as to reach an issue not squarely presented by the case in the first instance: whether the ATS applies extraterritorially.  Anyone watching the first (now moot) argument could get the sense that the Court was especially uncomfortable with the geographic broadness of the present statute. But, as counsel for the Petitioner emphasized during his argument, that was not a question presented. The Supreme Court, never letting the limits of a particular case get in its way, has now addressed that problem by slapping on the extra question itself.

This move strikes me as an exceptionally haphazard way of dealing with a complex statute. By gobbling up all of these questions in one case, the Supreme Court threatens to do a poor job of addressing any one particular issue.  I predict a sloppy opinion composed of various rudimentary answers to all sorts of ATS-related questions; I’d wager that the final product, a slapped-together product stumbling about like Frankenstein’s monster, will effectively emasculate the ATS and render Filartiga nothing more than an historical footnote.

-Michael

One Prediction on the Court’s Decision in Kiobel

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Susan has offered her eight predictions below, but I’ll offer only one: the court will not determine whether corporations may be held liable under the Alien Tort Statute. Instead, the Court will determine that the question of corporate liability is not a question of subject matter jurisdiction and dismiss the rest of the case.

Why? Keep in mind the procedural posture here. This case came out of the district court as a certified appeal unrelated to corporate liability. The Second Circuit only reached that question because it determined corporate liability was a question of subject matter jurisdiction that it had an obligation to address sua sponte. If that decision was improper, then I expect the Supreme Court will simply flip it back to the Second, scold them for reaching an unnecessary issue, and avoid addressing the meat of the argument for now.

Such a decision would fit the Court’s recent tendency to insist that most questions are not questions of subject matter jurisdiction. But it would also be another moment when civil procedure ruins everything. Blech.

-Michael

Eight Predictions on the Court’s Decision in Kiobel

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With Supreme Court oral arguments on Kiobel v. Royal Dutch Petroleum set for tomorrow, it will still be a while yet before the Court releases its opinion. In the meantime, however, here are my predictions on what the outcome of the case will be. Once the Court has actually gotten around to issuing an order, I’ll check back to see if I managed to get any right.

  1. The Kiobel plaintiffs will lose. Either directly on the Supreme Court’s ruling, or after being kicked back to the lower courts with a directive to make findings that spell doom for the plaintiffs, the case against Royal Dutch/Shell will ultimately be dismissed.

  2. But not because of a finding that corporations cannot be liable under the Alien Tort Statute. The ATS was enacted as a mechanism allowing aliens injured by acts violations of international law to recover damages directly from the party who caused them harm, rather than having the U.S. itself make reparations to the victims. The ATS’s concern is not punishment, but in the financial reparation of damages. And, to that end, from the precedent set by prize law, marine torts, and other areas of the law which, in 1789, regularly featured civil claims for violations of the law of nations, there is plenty for the Court to draw from in finding that principles of agency law apply when ascertaining the entity liable for the damages under the ATS. Sosa already made it clear the Court is going to pay close attention to history in making pronouncements on the ATS’s scope and function, and an enquiry into the historical purpose of the statute necessitates a finding of corporate liability.

  3. Instead, Kiobel will be dismissed under principals of comity. If I had to bet, this is the battleground on which Kiobel will be fought. The hubris of allowing a suit brought by aliens against foreign companies for foreign torts will be too much for the Supreme Court to look past, and they will find that international comity requires that U.S. courts decline to exercise jurisdiction in the situation presented. The defendants are corporations based in and operated out of the United Kingdom and the Netherlands, and none of their corporate holdings in the U.S. had any direct involvement with Shell’s abhorrent practices in Ogoniland. Allowing suit against these companies in the U.S. is one step short of having U.S. federal courts declare themselves to be an international tribunal competent of adjudicating foreign state’s violations of the law of nations, and the Supreme Court just isn’t going to go there. Bonus prediction: look to see Charming Betsy invoked to explain why the Founders only intended the ATS to be limited to cases with either (a) a sufficient U.S. nexus, whether it be based on territorial concerns or personality jurisdiction, or (b) universal jurisdiction. If Justice Breyer gets his way, part (b) will be expansive and include Really Super Bad Awful Acts. Otherwise, it’ll be limited to piracy and any other crimes in the jurisdictional void.

  4. And possibly for failing to meet exhaustion requirements. The requirement that a plaintiff exhaust all domestic remedies before proceeding in a foreign forum was not a consideration in Sosa, but the Court noted then that “[w]e would certainly consider this requirement in an appropriate case. ” It’s also an issue that cropped up frequently in amici briefs submitted by foreign sovereigns in Kiobel, so the Court may consider it again now, assuming it doesn’t stop once it gets to the comity issue. Although I expect the Kiobel plaintiffs won’t be required to have filed suit in Nigeria in order to meet exhaustion requirements, their failure to pursue suits in the Netherlands and the UK may prove fatal. Particularly so for the UK — the fact that many of the plaintiffs, including the Kiobel family, are themselves UK citizens or residents puts the inappropriateness of a U.S. forum into stark relief.

  5. The Court may also look into the Second Circuit’s decisions regarding aiding-and-abetting liability. The “knowledge and purpose” standard for aiding and abetting liability under the ATS may get some dicta thrown its way, but as Kiobel can be decided without reaching the question of secondary liability, I would guess that it will not feature prominently in the Court’s decision. There may be some discussion, though, about aiding and abetting as a substantive violation vs. agency liability as a theory of recovery, and whether both are decided under domestic law, neither are, or one is but not the other.

  6.  Justice Scalia will author a very terse opinion dissenting in part.  Expect it to feature scathing but memorable descriptions about the purported ridiculousness of the Court exercising jurisdiction under the ATS.

  7. Justice Thomas will join Scalia’s dissent.  True story.

  8. Ultimately, even though the specific plaintiffs in this case will lose, the Court’s decision in Kiobel will strengthen, not weaken, a global regime of corporate liability for international human rights violations. The Court’s opinion will signal its intention to respect both international comity and international human rights. As such, one day, in a different case, with different facts, where the U.S. is a proper forum from which a judgment should be issued, Kiobel will ultimately provide support for a finding of corporate liability for violations of international law. And aside from that, the simple fact that the highest court in the U.S. will have gone on record acknowledging that the activities of corporations are indeed cognizable under international law will be a small but significant step in shaping global norms regarding corporate human rights abuses.


-Susan

Is There an Easy Jurisdictional Answer to Kiobel? (Nope.)

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Professors Brad Clark and Anthony Bellia have again offered some thoughts on the Alien Tort Statute in advance of the Supreme Court’s arguments in Kiobel. This time, in a short essay to be published in the Georgetown Journal of International Law, the professors suggest that alien-on-alien torts are not covered by the Alien Tort Statute. If this turns out to be true, the professors reason that only U.S. corporate defendants could face suit; such suits wouldn’t need to rely on the ATS because they would likely meet the requirements of diversity jurisdiction. Thus, the issue of corporate liability under the ATS would largely be a moot point.

The professors’ argument is a nifty one, but I think it rests on the faulty premise that the ATS was “originally intended” to cover only suits by aliens against U.S. citizens. The professors distinguish between a tortious act of a U.S. citizen (which they say could be imputed to the United States if it were left unredressed) and a tortious act of an alien (which supposedly “was not directly imputed to the United States under the law of nations if the United States failed to redress it.”)

Of course, the professors’ approach ignores Susan’s excellent discussion of how the original impetus for the ATS might have been an alien-on-alien crime in the United States.

But perhaps more importantly, it ignores the fact that nations have certain obligations related to the acts of persons other than their own citizens. It’s not a simple matter of imputation. In the criminal context, for instance, nations have an obligation not to shield a wrongdoer (whatever his citizenship) who is justly sought by another country. It might be said that the duty arises from the obligation of the “refuge” state to provide a means for the requesting state to vindicate its own interests. Likewise, in the tort context, Nation A has an obligation to provide redress for an injury to a citizen of Nation B because, absent such redress, the wrongdoer might avoid penalty by using Nation A as a (personal) jurisdictional shield. Acting as a shield might then provoke Nation B, who under well-understood principles of diplomatic protection might then take action against Nation A.  Indeed, one authority suggests that “the assault or wrongful treatment of foreigners was one of the major reasons for the incitement of war,” regardless of the nationality of the offender.

The Marbois Incident, which Susan posits led to the ATS in the first place, is actually an excellent example of this idea in practice. When one Frenchman committed a violation of the law of nations against another Frenchman, France obviously had no grounds to be angry towards the United States based on any theory of “imputation.” Rather, France took issue with the United States’ independent failure to provide a remedy; America’s interests were “stand[ing] in the way of French justice.” (To be fair, the perpetrator in the Marbois incident was nominally an American, but it was well-understood that the citizenship was pretextual.)

As Professor William Dodge has also noted, Congress first reacted to the Marbois incident (and another minor incident involving a New York police officer) by recommending to the states that they provide for punishment of violations of the law of nations. This resolution had two critical elements: (a) allowing torts suits to be brought by the alien for the breach of a treaty or international law; and (b) an indemnification provision for harm to the United States caused by the breach. Interestingly, while the indemnification provision applied only to acts committed by United States citizens, there is no similar limitation as to the tort suit portion. Thus, early Congresses seemed to anticipate that any defendant could face liability for a violation of the law of nations.

Let’s also not forget the plain text of the ATS. While the Act obviously provides for an alien plaintiff, it does not define the relevant class of defendants. Complementary state laws, such as one in Connecticut, did indeed define the defendant class, but they defined it broadly: any person whatsoever.

In sum, while I can appreciate the efforts of Professors Clark and Bellia, I think they err in reviving this long dead argument (which Curtis Bradley seems to have been making for some time now).  The puzzle of Kiobel cannot be so easily solved.

-Michael

*The Professors also bring back the old argument that Article III does not anticipate any independent jurisdiction of courts to enforce the law of nations.  I think that point has already been well-addressed before, so I choose not to rehash it here.  A quick read of Filartiga should suffice to address that concern.  See Filartiga v. Pena-Irala, 630 F.2d 876, 885-87 (2d Cir. 1980).

[H/T: Volokh]

Why Kiobel Might Matter In This Year’s Election

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Update (again): Guess I’m not crazy.  Check out this recent article in Supreme Court Insider titled, “Will alien tort case be next Citizens United?”

Update: Our friends over at the Alien Tort Claims Act Blog don’t agree that Kiobel could amount to anything in the next election, calling it something that might show up in ”hour three of Rush Limbaugh’s show” at best. That’s probably fair; this post was meant to be somewhat tongue-in-cheek and I didn’t mean to overstate the case’s significance. Still, it’s possible you might see some discussion of this for a few days in June when the opinion comes out. It won’t drive the election (by any means) but it might provide an interesting talking point for one news cycle.

Right now, the only people excited about the upcoming Supreme Court argument (and ultimate decision) in Kiobel v. Royal Dutch Petroleum are international law nerds. At first glance, the case presents issues only a mother scholar could love:

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

But even though that sounds extraordinarily technical, the facts of the case actually might provide fodder for some explosive campaign rhetoric.

At bottom, Kiobel could be thought to confront two fundamental issues: (1) the rights of aliens to enjoy certain protections in U.S. courts; and (2) the accountability of corporations for acts that caused injury. Those issues touch upon some raw feelings, driven by xenophobia, anti-corporatism, and general distrust of the Supreme Court. Either way the case goes, it’s likely to stir intense political feelings:

  • If the court rules that corporations may not be held liable under the Alien Tort Statute, we’re likely to see a mini-replay of the Citizens United furor. The decision would fit neatly into the narrative that the Roberts court cares more about the interests of corporations than individuals. I can already imagine President Obama giving a speech about the Court’s unwillingness to place limits on the acts of corporations, whether those limits come in the form of campaign spending law, basic human rights laws, or otherwise.
  • If the court rules that corporations may be held liable under the Alien Tort Statute, then Republicans could use this case as another example of how “those people” (i.e., aliens, foreigners, what have you) have too many rights in this country. Launching into his best “they-terk-er-jerbs” speech, the Republican candidate could use Kiobel to condemn how the government has become more interested in protecting the interests of foreign citizens, rather than protecting the interests of small business owners, family farmers, apple pie bakers, etc. Then again, Arizona v. United States might provide a better platform for anti-immigrant rants than Kiobel.
  • If the court simply punts and says that the Alien Tort Statute does not apply extraterritorially, I don’t think anybody will care. Some people will scream about judicial activism, others will applaud the court’s judicial restraint. For its part, the Alien Tort Statute will be dead, squashed like a roach under the jackboot of judicial fuddyduddyness.

Personally, I think it’d be kind of nice to see candidates sparring on things of substance (like Kiobel) rather than spitting the same ‘ole sound bites. But that’s probably too much to ask for.

-Michael

A Critique of a Law and Economics Analysis of the Alien Tort Statute

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A few days ago, I was interested to see a new draft paper out that discussed the law and economics perspective of corporate liability under the Alien Tort Statute. Corporate Liability for Extraterritorial Torts Under the Alien Tort Statute and Beyond: An Economic Analysis, by Alan O. Sykes, focuses on an important part of ATS litigation, and one which so far has been relatively neglected — the economic impact of ATS suits.

Unfortunately, I came away from the article a bit disappointed; although Sykes accurately summarizes some economic concerns that are theoretically raised by the ATS, there is close to no examination of actual corporate behavior. I was frustrated with its near total disconnect from any specific applications of the ATS, as only a single example from actual ATS litigation is used to illustrate the potential economic downsides of corporate liability: that of Talisman’s withdrawal from Sudan and replacement by Chinese corporations. Actual dollar figures associated with defending ATS suits, or total amounts of judgments or settlements that have been paid under ATS cases, are never brought up.

My major complaint would be that, because the article simply focuses on the theoretical costs caused by corporate liability under the ATS, with little or no evidence as to the actual costs that have been experienced in ATS suits, Sykes’ analysis is almost equally applicable to the question of multinational corporate liability in any situation, not just Alien Tort Statute case. In his article, Sykes identifies five general economic costs:

  1. Litigation is expensive
  2. This is a confusing area of the law, which means judges are likely to end up making decisions that are biased against big, faceless corporations
  3. Allowing multinational corporations to be sued for allegedly bad things they have done can piss off foreign governments, either where the MNC is headquartered or where the bad acts took place
  4. Allowing corporations with connections to the U.S. to be sued is harmful because it gives a competitive benefit to corporations that do not do business in the U.S., and so cannot be sued
  5. Allowing corporations with U.S. connections to be sued will cause them to engage in expensive restructuring to create subsidiaries that have the competitive benefit of not being able to be sued in the U.S.

These costs are not really unique to the ATS context. It is not that any of these costs aren’t real, but Sykes never discusses how each of these general economic concerns is particularly applicable in the context of the Alien Tort Statute. For instance, although the first point is an important consideration for any type of litigation, the article does not provide any evidence that the costs of ATS litigation are more concerning than the costs associated with, say, products liability, or Title VII cases. Plus, as Sykes himself admits, a large proportion of corporate ATS cases feature up to a dozen different claims in addition to any ATS -based claim for relief. If the ATS didn’t exist, it doesn’t mean these all the ATS cases would cease to exist as well — just that they woudn’t have brought ATS claims. And, other than in a handful of high profile exceptions, the ATS portions of those cases don’t cause any significant increase in the overall litigation costs. As Sykes also admits, U.S. Courts are already concerned with the potential costs of baseless litigation, and have implemented doctrines intended to curtail the expenses associated with such cases. I am all in favor of Twombly’s heightened pleading standard applying to ATS suits, but the record of ATS litigation thus far — with an overwhelming majority of ATS cases being dismissed — suggests that this is already occurring, and that litigation costs in ATS suits are no higher than for any other given type of litigation.

As for the second point, regarding the risk of judicial bias against corporations, there is zero evidence that this is a cost particularly likely to occur in the context of ATS litigation. Given the existence of a single plaintiff victory at trial in corporate ATS cases — and perhaps a dozen settlements, many of which heavily favored the corporations — the record would suggest that ATS suits do not feature any problematic bias against corporate defendants.
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Law Professors Ask Ninth Circuit to Nullify the Alien Tort Statute?

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A group of law professors–in conjunction with the National Association of Manufacturers–recently filed an amicus brief in a Ninth Circuit corporate liability ATS case, Doe v. Nestle. The law professors make the standard arguments that (a) there is no well-established customary international law governing aiding-and-abetting liability; and (b) there is no well-established customary international law providing for corporate liability.  Earlier posts from Susan and me have pretty much beat these topics to death, so there’s no need to rehash all that here.

What I find more interesting is the professors’ third argument: that “principles of federal common law” would bar Plaintiffs’ claims. The argument is interesting because, if taken to its logical limits, it would effectively nullify the Alien Tort Statute (or, at the very least, freeze the law of the ATS in its present state).  The law professors chiefly rely on two principles: (1) that federal courts should avoid implying private causes of action; and (2) judicial interference in matters of international law and foreign policy is inappropriate (and better left to Congress).

First, the law professors are mistaken in suggesting that ATS courts should not permit corporate liability claims because to do so would inappropriately imply a private cause of action.  It’s important to recognize here that the cause of action could only be “implied” from international law itself, not from the ATS.  (This must be so given the Sosa court’s admonition that the ATS is merely a jurisdictional statute that does not itself provide a cause for relief.)  Even in the best case, “implying” a private cause of action from international law would be an exceptionally difficult task, especially compared to implying rights from Congressional statutes: while Congress could be expected to speak clearly and directly if it wished to make a private right, international law does not speak with the same specificity.  Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004) (“[T]he absence of congressional action addressing private rights of action under an international norm is more equivocal than its failure to provide such a right when it creates a statute.”). In other words, an ATS court is not faced with the same task of limiting itself to a given set of words (that is, the statute), but would be “implying” things from a much more amorphous and abstract body of international norms and principles.

The deeper problem with treating ATS liability as an issue of “implication” in the usual sense is that it would be hard to find a single rule of international law that would meet the law professors’ test.  I cannot think of a single international rule of law that contemplated individual enforcement, including the infamous Blackstone Three. (“The principal offenses against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safeconducts; 2. Infringement of the rights of embassadors; and, 3. Piracy.”). Taking the law professors’ approach would strip out any conceivable claim for relief.

The simpler approach is to recognize the context in which this statute arose.  The phrase “cause of action” didn’t come about until the late 1840s, several decades after the ATS was passed in the late 1700s.  Instead, early law simply assumed that a violation of a legal principle to the detriment of a party provided that party a right to relief. See, e.g., Tex. & Pac. R. Co. v. Rigsby, 241 U.S. 33, 39 (1916) (“A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law.”). As such, Congress likely assumed that any specific, identifiable international law norm could create a private remedy for a harmed individual.

Second, the law professors make a related argument that courts must be cautious in interfering with foreign affairs (a domain typically controlled by the executive and the legislature).  They suggest that federal common law is ordinarily used to restrain courts in international affairs.  And they note that Congress has enacted more “specific” remedies (such as the Torture Victims Protection Act) for violations of international law, such that courts should hesitate to act beyond those specific statutory instruments.

The fact that the law professors would cite the TVPA as support for their position is galling. Congress only acted to pass the TVPA after an opinion by Judge Bork strongly endorsed the positions taken by these law professors and seemed to gut the ATS.  See Tel-Oren v. Libyan Arab Repub., 726 F.2d 774, 798 (D.C. Cir. 1984) (Bork, J, concurring).  In response, Congress–which had apparently assumed previously that courts understood what the ATS said–passed the TVPA to “reinforce” and “clarify” that extrajudicial killing and torture (the specific acts at issue in Tel-Oren) were undeniably actionable.

No, the fact that the ATS refers to the law of nations suggests that courts were never expected to wait for Congress to act (again). Certainly, some amount of caution should be taken in condemning the acts of another nation. But caution must be distinguished from paralysis. Virtually every ATS case involves some foreign interest; refusing to act when such interests are involved would write the ATS out of the code books. As the Supreme Court indicated more than 100 years ago, courts must not flee from a case upon any appearance by the scary specter of international law or matters of “foreign relations”:

International law, in its widest and most comprehensive sense — including not only questions of right between nations, governed by what has been appropriately called the law of nations; but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation — is part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination.

Hilton v. Guyot, 159 U.S. 113, 163 (1895); see also Michael Tigar, Judicial Power, The “Political Question Doctrine,” and Foreign Relations, 17 UCLA L. Rev. 1135, 1178 (1970) (“In reality, if one examines the case law and history of judicial review [of matters involving foreign policy], deference has been a burden-shifting and burden-building device. … To refer to an absolute refusal to decide, grounded in no explicit congressional command, as ‘deference’ is to misdescribe what is in fact to surrender.”).

-Michael

Updated: Fourth Circuit Butchers International Law and the Alien Tort Statute

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Susan is really the expert on the Alien Tort Statute, so I hesitate to venture into that area. But the Fourth Circuit issued an opinion today that seems to misunderstand basic principles of international law, so I can’t just let it go. In Aziz v. Alcolac, the Fourth Circuit tackled the familar question of whether an aiding-and-abetting claim may be brought under the ATS. The court agreed that such a claim could be brought, but applied the specific mens rea requirement from the Rome Statute to any such claim (as opposed the more general “knowledege” requirement cited in other international law contexts).

The Fourth Circuit takes a truly bizarre path to relying on the Rome Statute. The court correctly recognizes that the “law of nations” can be drawn from international agreements (i.e. treaties), customary international law, and general principles of law common to civilized systems of law. But then the opinion breaks down, fashioning a principle of international law that doesn’t really use any of the above three sources.

The court ostensibly relies on the Rome Statute of the International Criminal Court to define the reach of aiding and abetting liability.  The treaty could useful evidence of customary international law, as treaties often are. Indeed, the United States apparently considers the Statute to be a reflection of binding international law. But the Fourth Circuit refuses to take that approach, concluding that the Rome Statute is “properly viewed in the nature of a treaty and not as customary international law.” The court apparently never considers the notion that treaties and customary international law can and often do overlap.

Instead, the Fourth Circuit just declares that the Rome Statute provides a nice standard because “its status as a treaty cuts in favor of accepting its mens rea standard as authoritative for purposes of ATS aiding and abetting liability.” The court points out that lots of nations have signed the Rome Statute, even if Iraq (where all the action in Aziz happened) and the United States haven’t. Well, that’s great, but doesn’t that go to whether or not the Rome Statute reflects customary international law, the very question the Fourth Circuit said it had already answered? I simply don’t understand how a treaty not signed by the relevant nations and not applicable to those nations as customary international law can nevertheless provide binding principles of law for those nations’ citizens. See VCLT art. 34 (“A treaty does not create either obligations or rights for a third State without its consent.”).

It looks like what’s really behind the Fourth Circuit’s adoption of the Rome Statute standard is the court’s uneasiness with the indefiniteness of customary international law.  The decision talks a lot about how customary international law is difficult to define and of “soft” character. This whole discussion indicates one of two things: (a) the Fourth Circuit was unwilling to do the hard work of doing the international law research and legwork necessary to determine what the relevant customary international law standards are; or (b) the standards really are hopelessly indeterminate, in which case this is not a norm that is “sufficiently definite” to be actionable under the ATS.  See Sosa v. Alvarez-Marchain, 542 U.S. 692, 732 (2004). Either way, this opinion merits a big thumbs down.

Maybe Susan will explain why I’m wrong, but for now I’m convinced that this was a bad decision.

-Michael

Update (Sept. 22): This post over at Opinio Juris confirms that others are reading this opinion the same way I am.

Asset Partitioning, Legal Personhood, and its Implications for Corporate Civil Liability

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What entities can be liable under the alien tort statute? At a minimum, it has been established that natural persons and foreign sovereigns can be successfully sued under the ATS. Beyond that, there is, to put it mildly, quite a bit of disagreement, most of it centered around whether or not a juridical person can be a validly named defendant alongside humans and nations.

The legal historians’ amicus brief [PDF] in support of the cert petition in Kiobel addresses this question in the context of the common law’s historical approach to questions of liability, arguing that “the Second Circuit erred in concluding that ‘who is liable for what’ is a matter of customary international law,” and that, in the United States, entities are liable for their agents’ torts without regard to the source of the substantive norm of conduct, and this applies to the ATS no less than it would any other tort statute. Although I largely agree with the brief, I wanted to expand upon some of its arguments here, and, in particular, to challenge the claims that, under international law, a “corporation” is a distinct and insular category that can or ought to be afforded its own set of rules. Questions of corporate personality — and for that matter, natural personhood — were not cognizable on the international plane at the time of the ATS’s enactment, as distinctions between sub-state entities could only be made through a state’s domestic law. Accordingly, the question of whether a non-state actor has committed a violation of international law is entirely independent of how a state’s domestic law assigns legal personhood to its subjects.

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The Alien Tort Statute, the Blackstone Three, and the Historical Basis of Judge Williams’ Concurrence In Shafi v. Palestinian Authority

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Judge Williams’ concurring opinion in Ali Shafi v. the Palestinian Authority, affirming the district court’s dismissal of the plaintiffs’ claims against the Palestinian Authority, is a long overdue attempt to create a new theoretical framework for the recognition of causes of action under Alien Tort Statute — or, more properly speaking, attempts to revive a very old one. His concurrence is an original attempt to link the ATS’ alleged origins in Blackstone’s Commentaries with the statute’s modern revival in Sosa v. Alvarez-Machain. Ultimately, it proposes a new standard all together for judges struggling to vigilantly police the ATS threshold: that the causes of action recognized under the ATS’s jurisdictional grant ought to be those which “protect[] and facilitate[] the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war.”

While I disagree with Judge Williams’ conclusion — that, in considering whether a plaintiff has stated a claim under the ATS, courts should look to “whether the defendant’s alleged behavior might provoke war if the United States occupied no more than an average position in global power rankings” — his concurrence attempts to inject some much needed ideological coherency into the federal courts’ constant invocations of the “Blackstone Three,” which, thanks to Sosa, are now an ubiquitous feature of modern ATS jurisprudence. Despite its prominent role in ATS litigation, however, most courts fail to understand the true significance of the Blackstone Three, and do not understand what unifies these three disparate norms of international law or why they have been chosen to be the paradigmatic causes of action under the ATS.

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