> The brute fact is that ultimately, might does indeed make right.
Sure. But that’s not “law” that’s the exercise of power. In 2024 we shouldn’t indulge the fiction that it’s more than that.
The way it has been construed, the ATS empowers US courts to do whatever they want if some foreign conduct offends the sensibilities of some Americans. Some feelers in America upset that Bangladesh summarily executes drug traffickers? They can sue for violation of “the law of nations.” I’m not saying the US can’t do that, I’m saying it’s stupid and arrogant.
> Some feelers in America upset that Bangladesh summarily executes drug traffickers? They can sue for violation of “the law of nations.”
Citation? In the mifepristone case just yesterday, SCOTUS reminded us of the need for "standing" — albeit while practically drawing a road map for other plaintiffs to try again.
Question: Under your reasoning, are Judge Kacsmaryk's nationwide injunctions, e.g., in the mifepristone case, similarly "stupid and arrogant," even though they're technically permissible under the All-Writs Act [which needs major revision IMHO]?
> Citation? In the mifepristone case just yesterday, SCOTUS reminded us of the need for "standing" — albeit while practically drawing a road map for other plaintiffs to try again.
Some “human rights” group in the U.S. would just have to find a random Bangladeshi person (including a non-citizen) to claim some family member was killed in some supposedly “illegal” execution of drug dealers.
> Question: Under your reasoning, are Judge Kacsmaryk's nationwide injunctions, e.g., in the mifepristone case, similarly "stupid and arrogant," even though they're technically permissible under the All-Writs Act [which needs major revision IMHO]?
No because he’s a judge of the same legal entity being enjoined. Unlike the national borders, the federal districts are mostly just lines in an org chart.
> The way it has been construed, the ATS empowers US courts to do whatever they want if some foreign conduct offends the sensibilities of some Americans.
I'm no expert, but this seems overbroad and even flat-out wrong.
1. Here's something from The New Republic [0] (certainly not a bastion of right-wing thought) earlier this week: "In recent history, as well, the U.S. has closed off some of the few venues through which victims of human rights violations committed by corporations can be heard in U.S. courts. In Kiobel v. Royal Dutch Petroleum [1], in 2012 [sic; 2013], the Supreme Court ruled that the Alien Tort Statute does not apply to human rights violations committed outside of the country, unless claimants can prove a strong connection to the United States."
2. From the Court's 9-0 decision in Kiobel:
<quote>
The question presented is whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States.
***
[N]othing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach.
The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States.
Nor does the fact that the text reaches "any civil action" suggest application to torts committed abroad; it is well established that generic terms like "any" or "every" do not rebut the presumption against extraterritoriality.
</quote>
(Extra paragraphing added.)
3. Then a few years later in Jesner v. Arab Bank, PLC (2018) [2], the Court said, 5-4: "With the ATS [Alien Tort Statute], the First Congress provided a federal remedy for a narrow category of international-law violations committed by individuals. Whether, more than two centuries on, a similar remedy should be available against foreign corporations is similarly a decision that Congress must make." (Emphasis added.)
And of course the Court has gotten much more conservative and pro-business since 2013 and 2018 ....
Sure. But that’s not “law” that’s the exercise of power. In 2024 we shouldn’t indulge the fiction that it’s more than that.
The way it has been construed, the ATS empowers US courts to do whatever they want if some foreign conduct offends the sensibilities of some Americans. Some feelers in America upset that Bangladesh summarily executes drug traffickers? They can sue for violation of “the law of nations.” I’m not saying the US can’t do that, I’m saying it’s stupid and arrogant.