This week in jurisdictionality

Having read the argument transcripts in Kiobel and Lozman, SCOTUS' early-term jurisdictionality cases, I am somewhat at a loss. Nothing in either case should have had anything to do with jurisdiction. The arguments both seemed rife with the mixing of jurisdiction and cause of action that I thought the Court had cleaned up fairly well over the past several years. And I am a bit worried that these cases will muck things up a bit.

Lozman considered whether the property at issue was a "vessel." And the Chief at one point insisted they needed to find the easier test, because this was a jurisdictional statute, which should be "clear and easy of application." But "vessel" does not appear in the maritime jurisdiction grant, which states simply that district courts have original jurisdiction over "[a]ny civil case of admiralty or maritime jurisidiction." Rather, the word appears in the Maritime Lien Act, which is the substantive law at issue in the case. Thus, the meaning of vessel, and whether the thing at issue here is a vessel, should be a merits question. I cannot see any difference between defining vessel here and defining "employer" or "employee" in a Title VII action, both of which are treated as merits issues, with jurisdiction established because the action "arises under" federal law.

As for Kiobel, there was no talk of jurisdiction v. merits or Morrison, although that was one of the issues on which the Court granted cert and reargument. The discussion was largely about what international norms are. The petitioner's arguments sounded, implicitly, in an understanding that corporate liability and extraterritoriality went to the merits of international law as incorporated into federal common law. I agree with that understanding, but continue to believe these are properly merits concerns and that § 1350 is satisfied by the allegations by an alien of a tortious violation of the law of nations

Speaking as a proceduralist, one of the more interesting exchanges came at the end of the petitioner's argument. Justice Ginsburg asked whether, given the argument that this involved a universal norm incorporated into federal common law, there was general federal question jurisdiction under § 1331. The petitioner ran from that notion, citing the history of § 1350 and the Founders' intent to allow certain law of nations laws to be implemented through common law tort actions. But, Justice Scalia channeled Justice Homes and argued that general common law was not deemed state law, but was "a general law that was up there in the sky" that, while enforceable in court, was not necessarily federal law. The petitioner responded that post-Erie cases preserved foreign relations as an enclave of common law that could be considered federal. That works, Justice Kennedy argued, only if Justice Ginsburg is correct that the case could have been brought under § 1331. Justice Ginsburg then added that the reason that Congress enacted the ATS may have been simply that there was no general federal question jurisdiction in 1789.

This is an interesting path. It would render § 1350 superfluous, just as § 1331 (sans amount-in-controversy requirement) has rendered other statute- or subject-specific jurisdictional grants superfluous. But it would also clarify that all of these arguments about the scope and application of federal common law are, properly, arguments about the merits of the claim. That should be true whether jurisdiction is established under § 1350 or § 1331.