Editor's Note :

Editor's Note :

This week we are hosting a symposium on Jesner v. Arab Bank, PLC, which asks whether the Alien Tort Statute categorically forecloses corporate liability. Contributions are available at this link.

Michael Barr is the Roy F. and Jean Humphrey Proffitt Professor of Law at the University of Michigan Law School. He filed an amicus brief for financial regulation scholars and former government officials in support of the plaintiffs in Jesner v. Arab Bank, PLC.

The Supreme Court has again decided to consider whether corporations can be liable for violations under the Alien Tort Statute. Jesner v. Arab Bank, PLC involves claims against Arab Bank under the ATS for allegedly knowingly and willfully financing terrorism by clearing transactions in support of terrorism through its New York branch.

Our amicus brief – filed on behalf of financial-regulation scholars and former government officials responsible for anti-terrorist-financing policy and enforcement – argues that a finding of corporate liability for banks is appropriate and consistent with U.S. policy and law. Preventing terrorist financing is a major policy goal of the United States. The U.S. Department of the Treasury has stated that disrupting the flow of funds to terrorists is an integral component of combating terrorism. Because the United States plays such a central role in the global financial market, denying terrorists access to the U.S. financial system is vital. Ensuring that terrorists do not have access to U.S. dollar clearing, the conversion of funds by a bank on behalf of a client from foreign currency into dollars, will help establish an environment less prone to terrorist financing.

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Petition of the day

By on Jul 26, 2017 at 12:32 pm

The petition of the day is:

16-1461

Issue: Whether, under Kiobel v. Royal Dutch Petroleum’s “touch and concern” test, courts must consider all connections Alien Tort Statute claims have to U.S. territory, as the U.S. Court of Appeals for the 4th, 9th, and 11th Circuits have held, or only the location of the alleged tort itself, as the U.S. Court of Appeals for the 2nd and 5th Circuits have held.

Anton Metlitsky is a partner at O’Melveny & Myers LLP. He filed an amicus brief for the Chamber of Commerce of the United States of America and other organizations in support of neither party in Jesner v. Arab Bank, PLC.

Enacted as part of the Judiciary Act of 1789, the Alien Tort Statute provides: “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.” Despite its Founding-era provenance, the ATS lay largely dormant until 1980, when the U.S. Court of Appeals for the 2nd Circuit held in Filartiga v. Pena-Irala that the statute authorized a Paraguayan national to bring a civil damages suit against a former Paraguayan police officer based on allegations of torture. The Supreme Court has construed the statute only twice since then – first in 2003 in Sosa v. Alvarez-Machain, and again in 2013 in Kiobel v. Royal Dutch Petroleum Co. (“Kiobel II”). The court will get its third opportunity this term, when it considers Jesner v. Arab Bank.

The legal question before the Supreme Court in Jesner is whether private plaintiffs may sue corporations (as distinct from natural persons) under the ATS to enforce certain human-rights norms. The question may seem odd at first blush, because the language of the statute itself does not differentiate between types of defendants, or even refer to the defendant at all. Thus, one might assume that suits against corporations under the ATS should be treated just as suits against individuals are.

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Wednesday round-up

By on Jul 26, 2017 at 7:07 am

Last night the Supreme Court, over a dissent by Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, declined to block the executions of three Ohio men, including one who is scheduled to be put to death this morning. Amy Howe covers the court’s ruling for this blog. Additional coverage comes from Julie Carr Smyth at the Associated Press, Mark Berman in The Washington Post, and Timothy Mclaughlin at Reuters, who notes that today’s execution “will be the state’s first … in more than three years after a lengthy legal dispute over the choice of lethal injection drugs.”

Briefly:

  • At FiveThirtyEight, Oliver Roeder reports that according to the latest Martin-Quinn scores, which “aim to pinpoint justices’ ideologies on a left-right political spectrum using statistical techniques based on the justices’ votes,” and despite the “small sample size,” Justice Neil Gorsuch “is lining up with the court’s conservative bloc and is beginning to resemble [a] ‘Scalia clone.’”

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No stay for Ohio executions

By on Jul 26, 2017 at 5:26 am

Over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter.

Phillips and the other two inmates, Gary Otte and Raymond Tibbetts, had challenged the three-drug protocol that the state plans to use to carry out their executions, arguing that it violates the Eighth Amendment’s ban on cruel and unusual punishment. Phillips’ execution would be the first in Ohio since 2014, when inmate Dennis McGuire was executed using a different combination of drugs. Eyewitnesses said that McGuire appeared to be gasping for air and sometimes choking for roughly half of the 24 minutes it took him to die. Continue reading »

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Kenneth Anderson is a professor of law at Washington College of Law, American University.

A striking feature of Kiobel II, the Supreme Court’s last excursion into the Alien Tort Statute prior to the current Jesner v. Arab Bank, PLC case, is how much Chief Justice John Roberts’ majority opinion and Justice Stephen Breyer’s concurrence (substantially a dissent) share in the way of two key background assumptions, one about politics and the other about law. These two assumptions together raise a puzzle as to why the court accepted Jesner and its limited question of whether the ATS permits suits against a corporate defendant.

The background political assumption in Kiobel II is that potentially deep, long-term changes are underway in the global political environment – indeed, in the post-WWII global political order – and the place of the United States within it. It’s a perception held to some degree, by my reckoning, by every one of the justices (with the possible exception of Justice Anthony Kennedy). It’s the perception of a global political environment characterized increasingly by jostling, prickly, competitive sovereigns jealous of their sovereign prerogatives – rising or resurgent great powers challenging the United States and parts of the global order it has championed and for which it has served, in effect, as guarantor over many decades.

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Petition of the day

By on Jul 25, 2017 at 12:22 pm

The petition of the day is:

16-1409

Issue: Whether, under the Employee Retirement Income Security Act’s complete preemption doctrine, federal courts are precluded from exercising federal question jurisdiction over independent state law claims against third-party service providers who cannot be liable or a proper defendant under ERISA, 29 U.S.C. § 502(a)(1)(B).

 

 

Beth Van Schaack is the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School. She is also the executive editor of Just Security.

As the U.S. Supreme Court takes up the question of whether the Alien Tort Statute supports claims against corporations in Jesner v. Arab Bank, PLC, the scope of corporate liability during the World War II era has assumed renewed relevance. The fact that the International Military Tribunal at Nuremberg did not criminally prosecute any corporations, as such, in the postwar period gets trotted out in support of two contentions: that international law does not recognize corporations as being capable of violating international law and that corporations cannot be held legally accountable if they commit international delicts. For example, in support of his conclusion in Kiobel v. Royal Dutch Petroleum Co. that corporations cannot be sued under the ATS, Judge José Cabranes of the U.S. Court of Appeals for the 2nd Circuit reasoned that “at the time of the Nuremberg trials, corporate liability was not recognized as a ‘specific, universal, and obligatory’ norm of customary international law.” Subsequent 2nd Circuit panels have largely, with some reluctance, considered themselves bound by this ruling. By contrast, every other circuit to consider the issue has drawn the opposite conclusion from the Nuremberg history as did the U.S. government in its amicus brief in Kiobel. This lopsided circuit split brought the question to the Supreme Court.

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Tuesday round-up

By on Jul 25, 2017 at 7:14 am

In The Washington Post, Spencer Hsu reports that “[f]ive protesters who disrupted a session of the U.S. Supreme Court by shouting disapproval of its rulings on campaign finance law were sentenced to one or two weekends in prison Monday after losing a bid to overturn a 1949 law restricting public protest at the court.” Additional coverage comes from Zoe Tillman at BuzzFeed News, who notes that “[a]lthough the sentences were minimal, they sent a message — after a spate of disruptive protests in recent years — that future would-be high-court demonstrators may risk jail by following a similar path.”

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Petition of the day

By on Jul 24, 2017 at 12:38 pm

The petition of the day is:

16-1221

Issue: Whether Federal Rule of Civil Procedure 23 permits a district court to certify a damages class where there is no reliable, administratively feasible method of identifying the members of the class.

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