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Wednesday, February 29, 2012

The Supreme Court and International Law

As reported all over the blogosphere yesterday (see here and here for just some of the commentary), the Supreme Court heard oral argument in the case of Kiobel v. Royal Dutch Petroleum.  In a nutshell, the issue before the Court was whether corporations are amenable to suit under the Alien Tort Statute, which grants federal courts jurisdiction over torts committed against aliens in violation of the law of nations.  Having looked at the oral argument transcript, I wanted to make a couple of brief observations to tie up some of my posts from the last month.

First, I had previously asked about the impact of scholarship on judicial decisionmaking.  Surprisingly, the Justices mentioned by name during the oral argument amicus briefs filed by scholars and asked the advocates to respond to those arguments.  It will be interesting to see whether scholarly arguments are taken account of in the Court's final opinion.  So, perhaps the answer to that question is "it depends."

Second, as to the question of whether law is going global, I think the answer, in looking at the Kiobel transcript, is that perhaps a majority of the Court is inclined to believe, at least in the ATS context, that U.S. law should be generally construed as territorial unless the U.S. has some sort of interest justifying the application of its law to extraterritorial conduct.  So, the answer may be that U.S. law is going global, but only if Congress or the facts of the case counsel in favor of that application.

Third, I am struck at how little attention was given by the Court to the question of where else these cases can be filed.  While the advocates were asked about other foreign fora, little attention was given to the question of whether U.S. state law might govern this conduct.  As I have argued, I think this is the next battleground for such cases.  If the Court sees fit to limit the ATS and the filing of international human rights claims in federal court, then we will have to wait and see whether state courts or foreign courts will receive such cases.

Finally, there seemed to be one big question that was never specifically addressed by the Court:  choice of law.  Here, I don't mean the choice of international law or domestic law to provide the right and the remedy but rather the question of which state's law should apply when extraterritorial facts are alleged.  That question sweeps within it questions of both personal jurisdiction and forum non conveniens, as Paul Hoffman noted in response to questions.  This question has not been adequately explored in legal scholarship in the transnational context.  I am finalizing a piece now on how personal jurisdiction in the transnational context is really a proxy for choice of law generally and the appropriateness of a U.S. court applying U.S. law to transnational facts (hopefully coming soon to a law review near you).  We will have to wait and see if the Court will provide some direction on this important point.

On a different note, let me say thanks to Dan and everyone at PrawfsBlawg for allowing me to hang around this month.  Indeed, you were so kind to give me an extra leap day at no extra cost!  Here's hoping to see some of you at Irvine later this week or around generally!

Posted by Trey Childress on February 29, 2012 at 05:01 PM | Permalink


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A question for my friend and former law school classmate: to what extent do you think that a likely Congressional reaction to a particular outcome on this case influences the Court's likelihood of ruling in favor of or against a cause of action? After all, the ATS is, as the "S" suggests, a statute and not a Constitutional principle. Does the Court care that, if it rules in favor of allowing this lawsuit to go forward, Congress is likely to disapprove and pass a correcting statute? Or does the Court not particularly care about Congressional preferences in the here-and-now -- that is, is it really just focused on what the statute "says" -- which, we can all agree, is entirely unclear? Put a bit differently, do you think the Court is going to be "strategic" in the game-theory sense, or does it, in this case, view itself as the only player in the law-making game here? Or am I wrong to assume that the "wrong" decision will provoke a Congressional counter-reaction?

Posted by: Jason Yackee | Feb 29, 2012 8:01:19 PM

Hi Jason: Thanks so much for the great question. Here is my sense of things. First, Justice O'Connor was always concerned with these issues. However, she is no longer on the Court. The Court as now constituted is concerned about this and thus has adopted the clear statement rule for extraterritorial application of U.S. law in Morrison. However, the ATS is different. First, Congress hasn't had the political will to do anything. A couple of years ago, Senator Boxer proposed amending the statute to deal with some of the issues. Her amendments were withdrawn in a week after objections were noted. Nothing further has happened. In light of that, I wonder if the Court will err on the side of closing down many of these cases and thus will encourage Congress to act, should it so choose, as it did in the Lily Ledbetter case. I guess the question is whether that is a good thing. Put a different way, should the Court push forward unless Congress says not to. Or, should the Court pull back and encourage Congress to act. It will be interesting to see what happens!

Posted by: Trey Childress | Mar 1, 2012 5:42:14 PM

Perhaps I've come too late for this to be noticed, but I have a question for both the prawfs and the Court (if they're reading)...

Say the Court reads a territorial restriction or "U.S. interest" requirement into § 1350, which gives federal courts jurisdiction over suits based on the identity of the parties (the plaintiff must be alien) and the nature of the suit (it must be for a tort committed violation of the law of nations). Would that same limitation also apply to cases brought in federal court under § 1332, which gives also federal courts jurisdiction over claims based on the identity of the parties (they must be completely diverse) and the nature of the suit (at least $75,000.01 must be at stake)?

Posted by: Scott Weingart | Mar 6, 2012 2:17:15 PM

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