Over at Opinio Juris, Harlan Cohen makes the compelling argument that the current “customary international law” paradigm of the Alien Tort Statute is a poor fit for the statute, particularly in light of recent cases. He’s right: trying to divine whether international custom supports aiding and abetting liability or corporate liability is, frankly, silly.

It will be interesting to see how the parties in Kiobel v. Royal Dutch Petroleum try to fit their arguments into the CIL framework that the Supreme Court adopted in Sosa v. Alvarez-Machain. Petitioners have been granted an extension and their brief will now be due on December 14, with amicus briefs due one week later. Respondents have retained veteran Supreme Court litigator and Quinn Emmanuel named-partner Kathleen Sullivan to argue their case. Their brief is due on January 27, 2012. The case will likely be argued during the February sitting.

The cert. petition could provide some insight into the Petitioner’s litigation strategy on the merits. The most compelling argument they make on the merits in their petition is that domestic law provides the framework for providing relief for crimes that are cognizable under the Alien Tort Statute, rendering complex CIL analysis irrelevant. That is certainly going to be the best way of arguing this case, and I hope it is an argument they fully pursue on the merits.

As a broad matter, however, I think the Alien Tort Statute is best read as a purely jurisdictional provision. I don’t have many adherent’s on this point, however, but Judge Bork’s concurring opinion in Tel-Oren v. PLO and Justice Scalia’s concurring opinion in Sosa v. Alvarez-Machain are about as close as any judges have come to siding with me. Court’s across the country have been clumsily trying to craft causes of action out of international law and, while I hope they are qualified to make those calls, most courts remain ill-equipped to make those decisions. The fact that so many courts have butchered their analysis of international law makes Judge Bork’s political question argument seem all the more poignant. Informed, thoughtful, consistent analysis would pose a significant threat to Congress’ ability to formulate foreign policy but analysis that lacks those fundamental characteristics poses an even greater threat to Congress’ authority.

It will be interesting to see how the Petitioners in Kiobel frame their arguments. My guess is that they will try to find ways to avoid clumsy CIL analysis and instead argue that corporate liability is a question of domestic law. We’ll know for sure in mid-December.


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