West Law Report

Sosa, customary international law, and the continuing relevance of Erie

Posted in Harvard Law Review (Article), Sosa v Alvarez Machain by mrkooenglish on June 11, 2008

(1)
An article of Curtis A. Bradley, Jack L. Goldsmith, and David H. Moore in Harvard Law Review (Feb 2007) (68 pages):

This Article analyzes the Supreme Court 2004 decision in Sosa v. Alvarez-Machain against the backdrop of the post-Erie federal common law. The Article shows that, contrary to the assertion of some commentators, Sosa did not embrace the odern position?that customary international law (CIL) has the status of self-executing federal common law to be applied by courts without any need for political branch authorization and, indeed, is best read as rejecting that position. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (that is, the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute (ATS), authorizes courts to apply CIL as domestic federal law.

The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely, admiralty and interstate disputes), as well as gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS, application of CIL to the war on terrorism, and the use of foreign and international materials in constitutional interpretation.

(2)
Responding by William S. Dodge Customary International Law and the Question of Legitimacy (9 pages):

In 1997, Professors Curtis Bradley and Jack Goldsmith shook the international law academy by arguing that the Supreme Court decision in Erie Railroad Co. v. Tompkins made it illegitimate for federal courts to continue to apply customary international law (which they called CIL) without further authorization from Congress. The Supreme Court 2004 decision in Sosa v. Alvarez-Machain seemed to reject this argument, holding that federal courts could apply customary international law under the Alien Tort Statute (ATS) without any authorization beyond the jurisdictional grant. Undaunted, Professors Bradley and Goldsmith (joined now by Professor David Moore) have returned to claim that Sosa in fact supports their argument and that ourts can domesticate CIL only in accordance with the requirements and limitations of post-Erie federal common law.? In my view, their latest article not only misinterprets Sosa but also raises fundamental questions concerning both the legitimacy of customary international law itself and the legitimacy of requiring its express incorporation into the U.S. legal system, a requirement that is contrary to the understanding of the founding generation.

(3)
Responding by Ernest A. YoungSosa and the Retail Incorporation of International Law (8 pages):

Since its release in 2004, Justice Souter majority opinion in Sosa v. Alvarez-Machain has become something of a Rorschach blot, in which each of the contending sides in the debate over the domestic status of customary international law (CIL) sees what it was predisposed to see anyway. Neither the thoughtful article by Professors Curtis Bradley, Jack Goldsmith, and David Moore, nor this comment upon that article, is any exception to that tendency: we, too, read Sosa as vindicating our previously expressed positions on this debate. That is an embarrassing situation for scholars all round, and it counsels caution in interpreting what the Court actually did and said in Sosa. But the willingness of all sides to claim victory doesn mean that nobody, in fact, won. I think that CIL revisionists like Professors Bradley, Goldsmith, and Moore (with whom I consider myself at least a fellow traveler) have the better claim on Sosa. In this brief comment, I hope to explain why.

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An objection to Sosa

Posted in Harvard Law Review (Article), Sosa v Alvarez Machain by mrkooenglish on June 11, 2008

A NOTE in Harvard Law Review (May 2006): AN OBJECTION TO SOSA — AND TO THE NEW FEDERAL COMMON LAW (.pdf) (22 pages)

Legal scholars have frequently derided the absence of a coherent theory of federal common law.1 As Professor Martha Field has put it, “[b]ecause limits on federal common law are incoherent, individual litigants have the opportunity to change the substantive rules in many situations in which state law has been assumed to govern.”2 Nonetheless, federal courts at the very least have adhered to a standard taxonomy of when such judicial lawmaking is appropriate: federal common law can arise both in “those [cases] in which a federal rule of decision is ‘necessary to protect uniquely federal interests,’ and [in those cases] in which Congress has given the courts the power to develop substantive law.”3 The Supreme Court has subdivided the former category into “rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases.”4 Into the latter category the Court has placed a variety of important national laws that fail to include either substantive rules necessary for their enforcement5 or express causes of action.

In Sosa v. Alvarez-Machain,7 a 2004 case concerning the scope of the Alien Tort Statute (ATS),8 the Court expanded federal common law to include a narrow set of eighteenth-century international law claims, such as piracy, as well as claims under modern customary international law (CIL)9 with at least as “definite content and acceptance among civilized nations” as those eighteenth-century norms.10 In doing so, the Court conceded that the ATS only grants federal jurisdiction over international law torts and thus that the first Congress did not create, explicitly or implicitly, a right of action under the statute.11 In a similar vein, the Court hinted that CIL claims brought under the ATS might fall into the special federal interest “enclave” of “our relations with foreign nations” but failed to explain why, if that is the case, any international law norm is not sufficient to invoke general federal question jurisdiction under 28 U.S.C. § 1331.12

This Note’s ambition is modest: to demonstrate that Sosa’s common law is inconsistent with the traditional taxonomy of federal common law. It first explains the Erie-based justification for the standard taxonomy. It then reviews the legal developments and doctrinal tensions
that gave rise to Sosa. Turning to the decision itself, this Note shows how Sosa is the first time the Court has unabashedly recognized federal common law that does not fall in either of the categories. Finally, this Note considers whether a footnote in Banco Nacional de Cuba v. Sabbatino13 undermines this conclusion.

Sosa v. Alvarez Machain

Harvard Law Review leading case summary: Sosa v. Alvarez Machain (2004): (.pdf) (11 pages)

Controversy has surrounded the Alien Tort Statute (ATS) since the Second Circuit pulled it from centuries of obscurity in the landmark case of Filartiga v. Pena-Irala. The current debate within the judiciary and the acad-emy arises largely from the confluence of two great legal shifts during the twentieth century: the changed relationship between the federal courts and the common law since Erie Railroad Co. v. Tompkins, and the evolution of customary international law, particularly its increased attention to the rights and duties of individuals rather than of states.

Last Term, in Sosa v. Alvarez-Machain (2004), the Supreme Court entered the debate and held that the prohibition in customary international law against arbitrary detention was not defined specifically enough to allow a claim under the ATS. While the Court did decide that claims under recently developed norms of international law may indeed be ac-tionable under the ATS, Sosa failed to articulate a clear conception of the interaction between customary international law and domestic law, and offers little guidance to lower courts both within ATS doctrine and beyond.