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Saturday, October 14, 2017

Argument on ATS in Jesner v. Arab Bank

SCOTUS heard argument on Wednesday in Jesner v. Arab Bank, considering whether a corporation can be sued under the  common law cause of action under the Alien Tort Statute. I listened to the audio and have a few thoughts on the procedure, without getting into the substantive question of corporate liability.

The Court a good job (certainly better than four years ago in Kiobel) talking about the issues without conflating jurisdiction and merits. Everyone spoke about causes of action and the scope of the norms that are part of federal common law and can be enforced through that cause of action, without speaking about jurisdiction in a sloppy way.

Justice Gorsuch asked petitioner/plaintiff counsel what the continued point of the ATS is, given that § 1331 grants jurisdiction over claims grounded in federal common law incorporating international law. Counsel explained that the ATS is like the maritime-jurisdiction grant, a more specific grant in the Judiciary Act of 1789 through which Congress could make absolutely clear that such cases could be brought in federal court. What neither mentioned (and what you would expect Gorsuch to remember, given his Originalist obsession) is that the 1789 Act did not include general "arising under" federal-question jurisdiction, necessitating these subject-specific grants. To the extent § 1350 is vestigial or superfluous with modern § 1331, it is not alone.

Posted by Howard Wasserman on October 14, 2017 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Another potential response to Gorsuch is that 1331 is subject to the limitations of Mottley and Grable; perhaps 1350 isn't (though I'm not sure that would matter in practice).

Posted by: Scott Dodson | Oct 15, 2017 12:59:47 PM

Leonard: State court.

I suppose the argument could be that the authority to create the cause of action is derived from § 1350 but not from § 1331. So the ATS is necessary not so much to ensure jurisdiction, which both statutes can do, but to ensure the cause of action.

Posted by: Howard Wasserman | Oct 14, 2017 8:39:35 PM

It appears that Justice speaking for the SCOTUS questioned if the Judiciary Act
of 1789 allows for federal court jurisdiction. Query, if the federal court does
not have jurisdiction, then who does??

Posted by: Leonard Kahn | Oct 14, 2017 3:42:19 PM

The legal questions here are interesting but basic usage questions arise in my mind. The "vestigial or superfluous" nature of this provision given "modern" law still leads me to wonder at what point did that happen?

Reference, e.g., in Sosa to 1790s cases led me to wonder what about later? Was the provision used in the early and mid-19th Century? My understanding is it suddenly popped up again c. 1980 as part of modern human rights activities. But, that is still a lot of time.

As an aside, Fisher is due for a major profile -- he is like one of the left leaning super-advocates in front of the Supreme Court.

Posted by: Joe | Oct 14, 2017 1:02:05 PM

Yes, that bothered me too. I was even about to make a point of it to someone. But I went back and he said "now we have 1331," the key word there being now, so I take it he knows we didn't have it then. I guess it's a fair question; if international law were really incorporated into the body of federal common law, as Fisher was arguing and Gorsuch was questioning, why do people bring these suits under the ATS? The inference being that maybe you need the ATS and that international law isn't incorporated into the body of federal common law, from which a number of downstream implications flow.

Posted by: Asher Steinberg | Oct 14, 2017 12:34:17 PM

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