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Tuesday, May 01, 2018

Adjudicative jurisdiction and substantive merits under the ATS

Michael Dorf explains the connection between the "only jurisdictional' understanding of the ATS and the narrowing of the judge-made substantive cause of action. Although the Court has never put it in these terms, Michael argues that it makes "internal sense" to understand the jurisdictional grant as the source of the implied right of action (a substantive, non-jurisdictional issue), so the right of action should not extend beyond the circumstances cognizable in 1789. I tried to get at the same idea in discussing Kiobel.

Posted by Howard Wasserman on May 1, 2018 at 08:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Really complicated , but this is basically wrong to claim that it is merely jurisdictional issue , and that it is up to the congress to decide as a matter of foreign policy , whether foreign corporations , can be sued under the ATS . The provisions are very clear , here :

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

End of quotation :

So , we have clear definitions of actions : " tort " , " law of nations " and finally " a treaty " . Those are sufficient elements !! For surly , the legislator , meant to include also future treaties ( like the treaty against tortures , ratified by the US , as mentioned indeed by some justices in the opinion ) . So , the cause or basis for action , is very clear and conclusive , whether one would differentiate between CIL , and " law of nations " or not . Finally , the clear wording and language , must precede any history or evolution , surly one must also adjust it to modern times .

Finally ,and , as well noted by Professor Beth Stephens , one can't differentiate between corporation and its employees or executives . For it is a Universal doctrine : even if a corporation is an independent legal entity , yet , any action of it , can and must be attributed to a natural person . A corporation , can never do nothing , unless done actually by human being , for indeed , the former is not a natural person .
Here at " Human rights at home blog " :



Posted by: El roam | May 2, 2018 9:20:31 AM

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