How Corporate Law Invented the Doctrine of Specific Jurisdiction, or Why Sovereignty Plays No Role in Specific Jurisdiction

This week, the Supreme Court issued its decision in Daimler AG v. Bauman, holding that a U.S. District Court in California does not have personal jurisdiction over a German corporation to hear a foreign tort claim brought by Argentinian plaintiffs, even when that corporation has U.S. subsidiaries that do frequent business in California and can be said to be “at home” in California. Actually, the Court went much further than that: not only does the U.S. District Court in the Northern District of California not have jurisdiction to hear the claim against Daimler, the Court’s decision leaves the strong implication that neither would any other court in the U.S., whether state or federal. In Bauman, the Court was forced to assume that Daimler’s U.S. subsidiaries – who are incorporated in or have a principal place of business in New Jersey and Delaware –  were “at home” in California. Even then, the Court concluded that no jurisdiction over Daimler existed. Since bringing suit in a state where Daimler’s subsidiaries were “at home” was not sufficient to confer jurisdiction, the Bauman plaintiffs’ claims would apparently fail no matter where in the U.S. it had been brought.

What is also of particular interest in Bauman, though, is the majority opinion’s relatively detailed recap of the history of general jurisdiction and specific jurisdiction. In doing so, the Court takes pains to portray Bauman as the natural and predictable progeny of the Court’s 1945 decision in International Shoe Co. v. Washington, as well as an extension of its more recent decisions in J. McIntyre Machinery, Ltd. v. Nicastro (2011) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). The Court’s decision reaffirms that, post-International Shoe, general jurisdiction has become the red-headed stepchild of the Supreme Court’s personal jurisdiction jurisprudence: yes, it does exist, but it’s not particularly significant, and whenever possible we’re going to try to focus on specific jurisdiction instead.

But Bauman’s history of personal jurisdiction neglects one very significant part of the story: the origins of specific jurisdiction. Although Bauman claims that, post-International Shoe, “specific jurisdiction has been cut loose from Pennoyer’s sway,” this metaphor mistakenly assumes that the two were ever pinned together in the first place. Specific jurisdiction was not derived from Pennoyer, nor from common law conceptions of general jurisdiction. Specific jurisdiction is instead the bastard child of corporate law and the Full Faith and Credit Clause, first born out of state legislatures’ needs to regulate the interstate activities of corporate entities, and later transformed by federal courts into a constitutional due process doctrine which imposed federal limits on state regulation of commerce. See, e.g., International Harvester Co. of America v. Kentucky, 234 US 579 (1914); and Whitaker v. Macfadden Publications, Inc., 70 App.D.C. 165 (1939).

Today’s judicial doctrine of specific jurisdiction was created as a statutory scheme to ensure that corporations could be sued even when they were acted outside of the state in which they were incorporated. Well over a century later, International Shoe adopted the doctrine, jettisoned its statutory origins, and announced that it was now a constitutional basis for regulating the reach of state courts via the Due Process clause of the Fourteenth Amendment. Unsurprisingly, the resulting legal concept is neither seamless nor entirely internally coherent. Although International Shoe attempted to shoehorn specific jurisdiction into the Court’s pre-existing framework of personal jurisdiction, but personal jurisdiction’s doctrinal lineage is very different from that of specific jurisdiction. Personal jurisdiction, as an expression of a state’s inherent sovereign authority, is a creature of international law. As result of this mismatch between jurisdictional concepts, nearly 70 years after International Shoe, the Supreme Court is still grappling today with how to resolve this basic conflict between the competing sovereignty-based and due process-based regimes of personal jurisdiction.

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Edmund Randolph Also Disagrees With the Supreme Court’s Decision in Kiobel

Oliver Ellsworth, as the primary drafter of the Judiciary Act of 1789, tends to get the lion’s share of the credit for the enactment of the Alien Tort Statute. Often overlooked in the history of the ATS, however, is the role played by Edmund Randolph, the first Attorney General for the United States.

Randolph was part of the congressional committee that drafted the original “recommendation to the states to enact laws for punishing infractions of the laws of nations,” in November 1781, which is frequently cited as a precursor to the ATS.
That resolution also contained a nascent version of the ATS’ grant of civil jurisdiction, providing “[t]hat it be farther recommended to authorise suits to be instituted for damages by the party injured” in the event of such a breach. During the Constitutional Convention, Randolph’s contributions demonstrated his continuing interest in the purposes served by the ATS. Randolph repeatedly criticized the failure of the Articles of Confederation to restrain states from engaging in “acts against a foreign power contrary to the laws of nations,” and argued that the federal government should have the power to redress violations of neutrality that might drag the U.S. into war. He also kicked off Article III’s inclusion of the Constitution, helped introduce the “to define … offences against the laws of nations” language in Article II, and advocated for the federal judiciary’s power over “questions which involve the national peace and harmony.”

He also tried to re-write the Judiciary Act of 1789, although he failed at that. But Washington appointed him as the United States’ first Attorney General, and in that capacity, he affirmed the extraterritorial effect of the ATS. In a memorandum provided to Thomas Jefferson regarding the slave abductions in Florida and St. Domingo, Randolph confirmed that although no criminal jurisdiction would extend to those acts, civil jurisdiction was plainly to be had in federal courts, where an alien brought a suit seeking damages for the Georgians’ violation of international law:

Neither of the cases is cognizable in the U.S. criminaliter; because they arose within the local jurisdiction of Florida and St. Domingo. Generally speaking, Incendiaries, poisoners, and other very high offenders may be demanded by the sovereign from whose territory they fled; and ought to be delivered up, according to the law of nations. But no such power exists in the U.S., by which such a surrender can be made.

Civiliter, however, damages may be recovered in the courts of the U.S. under the jurisdiction established by the judicial law if an alien be a party; and the state courts, if both [plaintiff] and [defenant] be citizens.

The federal judiciary has also cognizance of offences against the law of nations, because that law is attached to the U.S. from the nature of the subject, without explicit adoption of it; and because offences cognizable under the authority of the U.S. are clearly subjected by the judicial law to the circuit court. This Mr. J[efferson] seems to doubt, and is therefore referred to the 11th section [of the Judiciary Act of 1789].

It is presumed that congress ought not [specially?] to provide, (considering the circumstances of our country) for the surrender of the malefactors sheltered in the U.S. Nor can their definition be necessary; unless it be to define affirmatively those acts which perhaps may not be absolutely offences against the laws of nations yet are injurious to our harmony with foreign nations, if any such there be.

December 5, 1792

Randolph’s memorandum does no more than to restate the then-existing understanding of extraterritorial jurisdiction. There was a firm divide between the extraterritorial reach of criminal jurisdiction — which goes only to citizens on the high seas — and the extraterritorial reach of civil jurisdiction — which knew no such limitation. Although a U.S. citizen could not sue a U.S. citizen in federal court for an extraterritorial violation of international law, that was due to the lack of diversity jurisdiction, not because of a lack of extraterritorial effect. And, even if there was no federal jurisdiction, a U.S. citizen could still bring his suit in a state court, so long as process could be had on the defendant. But where an alien sued for damages, as in a civil suit, the ATS provided for that case to be brought in a federal court — and, to Randolph, and to Jefferson, the extraterritorial reach of that cause of action was as obvious as it was uncontroversial.

In 1792, the United States lacked the ability to proscribe crimes committed by its citizens within the territories of foreign sovereigns, and that was a source of some contention at the time. The Crimes Act of 1790 did proscribe some offences against international law, but only when committed within the jurisdiction of the United States. But to the founding fathers, the limits of a nation’s prescriptive jurisdiction with regard to criminal offences had little or no relation to a nation’s ability to provide for a cause of action, civiliter, for an extraterritorial tort. And, in light of the United States’ inability to provide a criminal remedy for extraterritorial violations of international, its ability to provide for a civil remedy was made all the more important.

-Susan

The Extraterritorial Effect of Respublica v. De Longchamps

The Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum held that the presumption against extraterritoriality applies to common law causes of action under the ATS, and that there is no evidence the First Congress had intended the ATS to confer jurisdiction over extraterritorial torts. The Court’s conclusion was based, in part, on its claim that the ATS had been specifically enacted in response to two “domestic” breaches of international law: the Marbois-Longchamps Affair and the arrest of a servant in Ambassador Van Berckel’s household:

Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois — the Secretary of the French Legion — in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v. De Longschamps [sic], 1 Dall. 111 (O. T. Phila. 1784).

The Court held that, because there are two known domestic incidents that contributed to the ATS’s enactment, when the First Congress drafted the ATS it must have only had in mind domestic causes of action:

These prominent contemporary examples — immediately before and after passage of the ATS — provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.

The Court’s claim that the First Congress was concerned primarily with these two incidents is based on assumption, not the historical record. More significantly, however, the Court’s claim that Respublica v. De Longchamps “involved conduct within the Union” is, quite simply, wrong. The Longchamps case was understood by all involved to be a case involving the extraterritorial application of the law.

Kiobel was correct that the Longchamps case involved “a French adventurer verbally and physically assaulted [Secretary] Marbois.” But the Court’s summary description of the case conflates two wholly separate charges. Longchamps, a French expat, was charged with a verbal assault and a physical assault aginst Marbois, but it was only the verbal assault that fell afoul of the laws of nation. The charge for the physical assault was not under international law, but under municipal law:

Longchamps was initially charged with two counts: (1) “unlawfully and violently threatening and menacing bodily harm and violence to the person of the honorable Francis-Barbe De Marbois, Secretary to the Legation from France, and Consul General of France to the United States of America, in the mansion-house of the Minister Plenipotentiary of France,” and (2) “for an Assault and Battery committed upon the said Secretary and Consul, in a public street in the City of Philadelphia.”

The jury had no difficulty convicting Longchamps on the second count, and the Pennsylvania Court “[t]he second offence charged in the indictment, namely the Assault and Battery, needs no observations.”

But the first count was more problematic. One of the reasons that the Marbois Affair caused so much diplomatic unease is that Longchamps’ violation of the law of nations occurred not on the street, as the assault had, but in the hotel of the minister plenipotentiary of France. There was a great deal of uncertainty among both members of the Federal Congress and the government of Pennsylvania as to whether such an extraterritorial offense was even cognizable by a Pennsylvanian court.

This was a very real foreign relations concern for the United States. Marbois himself was not that important, and it wasn’t his personal indignation that was causing the Framers’ a foreign relations headache. The true party in interest was the Chevalier de la Luzerne, the French Ambassador — and the United States cared very much about maintaining his good graces.

The offense to Luzerne occurred two days prior to battery that occurred on the Philadelphia streets, when Longchamps went to the French minister plenipotentiary’s house and gotten into a verbal altercation with Marbois. Longchamps’ insults to the secretary were quite scanadalous, at least by the contemporary standards. The specific insult Longchamps was said to have made to Secretary Marbois was, “I will dishonor you, you naughty rascal!”

And it was this insult — or rather, the location where Longchamps said the insult — that was the real point of contention. Such an act was deemed a violation of the laws of nations, and French minister Luzerne wanted recompense. Believing that it had been an insult to the French nation’s honor, Luzerne — and also his friend, Van Berckel, the Dutch minister, who would later be involved in the 1787 event also cited by Kiobel – threatened to remove their respective legations from Philadelphia if the U.S. failed to take appropriate action against Longchamps under the laws of nations.

In fact, at Longchamps’ trial in July of 1784, it initially seemed that only the assault charge under municipal law would stand, as the jury originally found Longchamps to be guilty of only that offense. After a little bit of coaxing from the judges, however, the jury finally got it right, and convicted him of violating both the law of Pennsylvania and the law of nations:

The Jury, at first, found the defendant guilty of the Assault only; but, the Court desiring them to re-consider the matter, they returned with a verdict against him on both Counts.

Longchamps’ defense attorneys contested the validity of the count chargining a violation of the law of nations, arguing that only the municipal law of Pennsylvania could apply, as that was where the offense was committed. This claim was rejected by the Pennsylvania Court, which concluded that the law of nations — and not the municipal law of Pennsylvania — properly applied to Longchamps’ offense, because the offense had been committed extraterritorially, outside of the territory of Pennsylvania, where Pennsylvania law did not apply:

It must be determined on the principles of the laws of nations, which form a part of the municipal law of Pennsylvania; and, if the offences charged in the indictment have been committed, there can be no doubt, that those laws have been violated. The words used in the Minister’s house, (which is to be considered as a Foreign Domicil, where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend) may be compared to the same words applied to the Judges, in a Court of Justice, where they sit in representation of the majesty of the People, of Pennsylvania.

The Pennsylvania Supreme Court’s decision was based on then-existing conceptions of the inviolability of the premises of a foreign minister. Although the doctrine was discarded shortly thereafter, in the 18th century, at the time that Longchamps was decided, the concept of the Franchise de l’hôtel was still in effect. Under this doctrine, a foreign minister’s dwelling (or domicile) was conceived to be “extra-territorial” to the nation where it sat. The laws of the host state did not enter upon or apply to the minister’s domicile, and the host sovereign could not exercise jurisdiction — whether civil or criminal — over acts which occurred within it, because the foreign minister’s hotel was considered to be under the jurisdiction and sovereignty of his home state.

Unsurprisingly, this doctrine lead to a great deal of abuse by ambassadors, who used their extraterritorial status to their own financial benefit, by shielding criminals and smugglers of all types. In fact, in the 16th and 17th centuries, prior to the more limited Franchise de l’hôtel, the law of nations recognized the more expansive Franchise du quartier — the right of the ambassador to claim privileged status over his entire city quarter. Under the Franchise du quartier, Ambassadors could, from their residences, grant asylum, enter into contracts, or try and execute servants for criminal violations, all under the law of the sovereign nation to which the embassy belonged.

By the late 18th century, the extent of a foreign minister’s exterritoriality had diminished from its earlier peak. The modern view — which is that foreign embassies are entitled to an extensive list of privileges and immunities, but are nevertheless within the territorial sovereignty of the nation in which they are located — was not yet fully established, however. And at the time of Longchamps’ trial, the Pennsylvanian authorities, the French legation, and the Federal government were all very much of the belief that Longchamps’ crime against the French legation had been committed on French soil, not U.S. soil. In requesting advice from Congress on how to proceed against Longchamps, the Supreme Executive Counsel of Pennsylvania specified that the offense had occurred “in the hotel of the Minister of France,” finding the location of the infraction to be of great signficance. Luzerne also made much of the location of the insul; his position was that France was entitled to exercise jurisdiction over the offense, because it had been extraterritorial to the United States, and he therefore requested that Longchamps be repatriated to France so that he could be prosecuted there.fn2

Although France’s extradition request was denied, Chief Justice McKean ultimately agreed with Pennsylvania’s Attorney General, William Bradford. Bradford argued, on behalf of the prosecution, that Longchamps’ insults were an offense against the law of nations, and that Pennsylvania’s law did not apply, because it had occurred “where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend.” Under Pennsylvania law, use of insulting language was not a crime, and he could not be convicted for calling Marbois a dirty rascal. Under international law, however, such an act was an offens. The Supreme Court of Pennsylvania agreed with Bradford that the offense had been extraterritorial, and Longchamps’ conduct was therefore a criminal offense. The Pennsylvania Court also found that, even though the offense was under international law and not Pennsylvanian law, Longchamps could still be convicted of the offense by a Pennsylvania state court. As Bradford had argued, “the law of nations, which makes part of the common law of all nations, requires no particular forms of legal proceedings, but always adopts those of the municipal laws of the different countries of where it is in force.” The Pennsylvania Court accordingly found that the Law of Nations provided the substantive law which made Longchamps’ conduct a criminal offense, and that Pennsylvania provided the forum and procedural law under which Longchamps could be charged and convicted.

Bradford, as the Attorney General for the United States, would also later reaffirm the view that a  foreign minister’s dwelling-house was extraterritorial to the jurisdiction of the state where it was located. In his Opinion of June 24, 1794, at 1 Op. 47, Bradford noted that, unlike an ambassador’s dwelling, a foreign warship in the United States’ territorial waters was subject to that state’s jurisdiction: “[t]he commander of a foreign ship-of-war . . . cannot claim that extraterritoriality which is annexed to a foreign minister and to his domicil; but is conceived to be fully within the reach of, and amenable to, the usual jurisdiction of the State where he happens to be.” This decision echoes the language used in Respublica v. Longchamps, and does not support the Supreme Court’s conclusion in Kiobel that Longchamps “involved conduct within the Union.”

-Susan

fn1. As a legal matter, the offence of assault and battery on a public street was unquestionably a crime under the municipal law, and not the source of any legal uncertainty. It is of interest to note, however, that there is reason to be skeptical of the factual basis of the charge, and there is evidence that Marbois, not Longchamps, was the initial aggressor.

fn2. Luzerne’s demand for Longchamps to be extradited caused its own political difficulties. Longchamps was not without supporters in the U.S., and his extradition would have been domestically unpopular. This is part of why the case became such a flashpoint; the U.S. officials could not extradite Longchamps without causing a domestic scandal, and could not fail to convict him for a breach of international law without causing a foreign relations disaster.

Eight Predictions on the Court’s Decision in Kiobel

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

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

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

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

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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