NRO's Jonathan Adler, also a professor at Case Western Reserve University School of Law, posted a good piece online yesterday discussing the Supreme Court's holding last month in Sosa v. Alvarez-Machain. The case had addressed the recent application of the 1789 Alient Tort Claims Act to a variety of "international injustices."
As Adler explains: "The first such suits in federal courts were brought by foreign citizens against foreign officials alleging severe human-rights abuses overseas, such as torture and mass atrocities. More recently, human-rights and environmental activists have brought suits on behalf of foreign nationals against multinational corporations for their alleged complicity in the rights abuses of foreign regimes. In one suit, for example, U.S. plaintiffs' attorneys are suing corporations that did business with South Africa's Apartheid government, alleging these companies were complicit in the regime's human rights abuses - and that only a whopping tort settlement in a U.S. court can right the wrong."
My take on these suits? As I expressed in an interview this spring, before the case was decided, the suits are largely driven by "cowboy law professors who want to hijack U.S. human-rights laws. They exploit U.S. courts to get their preferred policies implemented without having to worry about the State Department or Congress." While the latter class of cases -- those against the multinationals -- are the more typical fee-driven sort, many of these cases are also driven by "a feeling of 'I want to be the secretary of state' among these lawyers."
The 1789 Act granted U.S. courts original jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations . . ." The Court held, unanimously and quite sensibly, that the law in 1789 could only have been meant to include those "violations of the law of nations" acknowledged in 1789, i.e., "violating safe conduct, infringing the rights of ambassadors, and piracy."
But even then, the Court's majority opinion was sufficiently squishy that I expect we haven't heard the end of this tale. Justice Souter's majority opinion noted only that "a decision to create a private right of action is one better left to legislative judgment in the great majority of cases," it specifically left the door "ajar" to suits based on "international norms" that are "accepted by the civilized world and defined with a specificity comparable" to the original actions contemplated by the 1789 Act. Thus, the Supremes hardly stopped abuse of our courts based on this arcane law but rather trusted in the "vigilant doorkeeping" of our federal courts.
Adler quoted Hofstra law professor Julian Ku, my law school classmate and housemate, as stating that the opinion "makes all the right noises about the dangers of unrestrained federal court international lawmaking, but it didn't take that final step that would have restricted it in any meaningful way." Julian is a specialist in international law (see some of his academic writing here, and on Westlaw see some of his earlier writings, "Customary International Law in State Courts," 42 Va. J. Int'l L. 265 (2001), and "The Delegation of Federal Power to International Organizations: New Problems with Old Solutions," 85 Minn. L. Rev. 71 (2000)); he tells me that his bretheren among the international law faculty who were involved in this suit view the Supreme Court opinion as a victory, giving them a green light to pursue their international law-based claims against businesses.
Suits have already been filed against companies that made significant investments in Iraq. The tendency for such litigation to obstruct the executive branch's foreign policy powers is obvious. But trampling on the separation of powers and assuming all power for itself is what the rule of lawyers seems to be all about.