Jesner: A Guide to the Blogosphere

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Publication Type: 
Other Writing
Publication Date: 
September 30, 2017

As part of our symposium of Jesner v. Arab Bank case, we are offering this annotated guide to previous coverage of the case in the blogosphere, including another online symposium on the SCOTUS blog featuring a contribution on the relevance of the post-WWII prosecutions by yours truly.

SCOTUS BLOG Symposium

Rick Herz, “It’s Just a Tort Case”—arguing that federal common law (as opposed to international law) governs the question of whether corporations can be sued under the ATS.

Kristen Linsley, “Dusting Off Corporate Liability in Jesner”—arguing that states have reasonably resisted according non-state actors such as corporations a status equal to that of states under international law and that domestic courts should not innovate when Congress has not acted.

Michael Barr, “Combating Terrorist Financing through the ATS”—demonstrating that combating terrorist financing is a major U.S. policy goal so all available tools should be deployed, including civil liability against corporations, which complements other responses such as banking regulations.  Corresponding amicus brief.

Anton Metlitsky, “A Federal Common Law Approach”—arguing that federal common law does not authorize federal courts to recognize private human-rights claims against corporations without express congressional authorization given that corporate liability is not recognized in Bivens actions or suits under the Torture Victim Protection Act, the two closest statutory analogs to the ATS.

Ken Anderson, “After ‘Universality’”—positing that the Supreme Court with its ATS jurisprudence has undertaken a process of de-internationalizing the ATS and turning it into a domestic law mechanism and that Jesner will continue this trend by treating corporate cases as analogous to everyday tort cases.

Beth Van Schaack, “The Lessons of Nuremberg”—arguing that nothing about the victorious allies’ post-WWII responses—in and out of the courtroom—suggests that the Allies considered corporate liability to be legally foreclosed by international law; rather, they viewed corporations as capable of violating international law and of being held accountable for doing so. Corresponding amicus brief.

Amy Howe, “Corporate Liability: In Plain English”—providing a backgrounder for the case.

Elsewhere

OyezBackgrounder.

LA Daily Journal: Beth Van Schaack, The Inconsequential Choice of Law Dilemma in Jesner (subscription required) — identifying the a priori choice-of-law issue — should courts look to international law or federal common law to resolve the question presented? — and arguing this choice-of-law debate proves to be inconsequential given that both bodies of law point in the same direction and hand victory to the plaintiffs.

Lawfare: Sarah Freudan & Alex Zerden, Arab Bank’s Appeal—outlining the issues that emerged on appeal in the 2nd Circuit, a panel of which applied the Sosa test to conclude that the concept of corporate liability had not attained universal acceptance under international law.

EJIL Talk!: Anil Yilmaz-Vastardis—International Investment Law and Human Rights Obligations—demonstrating ways in which international investment law can provide a conduit to provide human rights protections and providing examples of tribunals and investment treaties that have recognized that corporations can be subjects of international law bearing human rights duties.

Opinio Juris: Julian Ku, SCOTUS considers Corporate Liability—arguing that “the issue of corporate liability should be governed by international law and that the strict standards for recognizing an actionable norm under the Court’s prior decision in Sosa precludes recognizing an ATS cause of action against corporations.”

Opinio Juris: Heather Cohen, The Drafters Knew Best—arguing that defendants’ arguments are inconsistent with the intent of the drafters of the ATS and the legal interpretations that have followed.

James G. StewartThe Kouwenhoven Trial—highlighting Dutch trial against a businessman accused of complicity in war crimes for breaching arms embargoes in West Africa.

Dieneke De VosDutch Court Convicts Timber Baron of War Crimes in Liberia—also describing successful prosecution of a Dutch national (Kouwenhoven) for being an accessory to war crimes based upon his knowledge that the weapons he supplied would be used for the commission of war crimes.

Reuters, Alison Frankel—DOJ’s Curious Brief—Discussing tension within the US government brief, which supports corporate accountability for corporations (consistent with previous briefing), but hints that the presumption against extraterritoriality might offer grounds to dismiss the case particularly where automated clearance activities are one key US nexus.

Read the full post at Just Security