Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

-_

| Sune NO Un Se

FET dD

No. 10-1491 JUM 14 2002

3n The

Supreme Court of the Anited States

4

ESTHER KIOBEL, et ai.,

Petitioners,

vs.

ROYAL DUTCH PETROLEUM CO.., et al.,

Respondents.

>

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

4

BRIEF ON REARGUMENT OF PROFESSORS OF

LEGAL HISTORY AND FEDERAL JURISDICTION,

MARTIN S. FLAHERTY AND JOHN V. ORTH, AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

4

FREDERICK W. MORRIS*

STUART ALGER

SHARNA WAHLGREN

MATTHEW D. MELEWSKI

LEONARD, STREET AND DEINARD

150 South Fifth Street

Minneapolis, MN 55402

(612) 335-1500

frederick.morris@leonard.com

*Counsel of Record

Counsel for Amici Curiae

——“] — — —_—_{_{_£_£_{—i~OEEE——S——SEEeESaEaSESEaEEEeEEeEQ®™EOee

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .........................02eeeee ii

INTEREST OF AMICI CURIAE...................2..0000ceee000es 1

SUMMARY OF ARGUMENT ............................5 1

a icnicncadaeneumsentasesesennsceness 2

I. ARTICLE III AUTHORIZES FEDERAL

SUBJECT MATTER JURISDICTION

OVER ALIEN TORT STATUTE CLAIMS

BECAUSE THOSE CLAIMS “ARISE

UNDER” FEDERAL COMMON LAW. ....... 3

II. CONGRESS’ RECOGNITION OF FED-

ERAL SUBJECT MATTER JURISDIC-

TION OVER CLAIMS ASSERTED BY

NON-DIVERSE PARTIES FOR TORTS

IN VIOLATION OF THE LAW OF NA-

TIONS WAS CONSTITUTIONAL WHEN

ET iciididiintsindunchdsinistisunndcovenenesosenes 7

A. The Diversity Theory of the Alien

Tort Statute Ignores the Language

and History of the Statute and the

i citdeiiecaddautanoncnns 8

B. The Alien Tort Statute, When Enacted,

Implemented Article III Federal

Question Jurisdiction .......................0.. 13

a cuguussoarseoense 24

APPENDIX

LIST OF AMICI CURIAE oo...c.cccccccesscsesuevesecuesnee App. 1

ll

TABLE OF AUTHORITIES

Page

CASES

Argentine Republic v. Amerada Hess Shipping

i, Se Os Ge Ce tctecscissecnicinininittininminsl 8

Banco Nacional de Cuba v. Sabbatino, 376 U.S.

Rn ee ermine DONE Fern D aN OO 10

Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795).....12, 19

Conn. Nat'l Bank v. Germain, 503 U.S. 249

EaTIII it cdenisiinsiisinsieninedieinedaninebiamiiianaindieianemrnagaedionanel 8

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).....5, 21, 22

Filartiga v. Pefia-Irala, 630 F.2d 876 (2d Cir.

SUT idaho dccuniesioapiasiniaannitiaaisinnsiundniamedsiamaateinesmmmbiiateaatiiel 19, 23

Grable & Sons Metal Products, Inc. v. Darue

Engineering & Manufacturing, 545 U.S. 308

IIIT enanctutdinneponietiahuciendecaiamanebininiansipabibnemsiieiedeiiaineutiil 20

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ........ 5

Ker v. Illinois, 119 U.S. 436 (1886) .....................c0e000s 22

Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa.

Sip incounnhitadedenseapeibbincpemdeaniiatinaiaanstiemets 11, 12,19

New York Life Insurance Co. v. Hendren, 92

a aac nena nailed da eid aaiaaaidl 22

Osborn v. Bank of the United States, 22 U.S. (9

ee Ce irescetiteascinscestetirintaninieiaiaiiitasiadetclltti ine 20

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ....passim _

Verlinden B.V. v. Central Bank of Nigeria, 461

a a Ce iinscnssccnsndcnninnssniieininiaiiensiebbluiciaiaaaniiailaiea 20

lil

TABLE OF AUTHORITIES -— Continued

Page

CONSTITUTIONAL PROVISIONS

Supremacy Clause of Article V1.....................:sceeeeeeees 15

es nC ce 17,18

I 17

oF eG 8 8 SS eae 9

re a a idea 15

STATUTES

Alien Tort Statute, 28 U.S.C. § 1350 ......0.00000.... passim

Judiciary Act of Sept. 24, 1789, ch. 20, § 9, 1

IT TEE. seribiacintdimninnnbaniraianebeimenianindaiaenmiimeias 3, 10,18

Soe EE: EE ITIIER Suchicissinecaniniiiinnnnmianistiseumineadinmeunsdiinate 5, 20

RULES AND REGULATIONS

Rare ene ET 1

OTHER AUTHORITIES

1 U.S. Op. Att’y Gen. 26 (1792) (Edmund

| NE Te ne ea ET 18

2 THE DOCUMENTARY HISTORY OF THE SUPREME

COURT OF THE UNITED STATES, 1789-1800, at

381 (Maeva Marcus ed., 1988).............. cece cece eee ee eee 18

10 THE DOCUMENTARY HISTORY OF THE CONSTI-

TUTION (John P. Kaminski & Gaspare J.

I a 17

iv

TABLE OF AUTHORITIES — Continued

19 CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

EDWARD H. CoopeR, FEDERAL PRACTICE AND

PROCEDURE § 4514 (2d ed. 1996)............. 0.0 ce cece cece eens 5

Anthony J. Bellia Jr. & Bradford R. Clark, The

Alien Tort Statute and the Law of Nations, 78

U. Cui. L. REV. 445 (2011).............cceeec eee 6, 8, 11,13

Anthony J. Bellia Jr. & Bradford R. Clark, The

Federal Common Law of Nations, 109

SEE. Be, GEE. Fi GRO coccnccccncesensesesconceesesesseusseevers 21

Beth Stephens, The Law of Our Land: Custom-

ary International Law as Federal Law After

Erie, 66 FORDHAM L. Rev. 393 (1997)..................... 22

Carlos M. Vazquez, Customary International

Law as U.S. Law: A Critique of the Revision-

ist and Intermediate Positions and a Defense

of the Modern Position, 86 NOTRE DAME L.

I I nrcitintninnccigiinineninnsmnnanenian 20, 21, 22

Curtis A. Bradley, The Alien Tort Statute and

Article III, 42 Va. J. INT'L L. 587 (2002)............. 6,19

David M. Golove & Daniel J. Hulsebosch, A

Civilized Nation: The Early American Con-

stitution, the Law of Nations, and the Pursuit

of International Recognition, 85 N.Y.U. L.

Se. SE ccinsneintntnnecamigntinniniinimnieintasaeapementeens 13

Draft Opinion of William Patterson, reprinted

in Casto, 18 Conn. L. REV. 526....................ceseeeeeeee 16

Edwin D. Dickinson, The Law of Nations as

Part of the National Law of the United

States, 101 U. Pa. L. Rev. 26 (1952)...............0..00.. 15

TABLE OF AUTHORITIES — Continued

Ernest A. Young, Sosa and the Retail Incorpo-

ration of International Law, 120 Harv. L.

Ble Sie Si IE Phitriccccnnnsrcisnninncnssdionccmimnminammesncens 6

Herbert Wechsler, Federal Jurisdiction and the

Revision of the Judicial Code, 13 LAw &

CONTEMP. PROBS. 216 (1948) .................ccceeeeeeeeee eee 21

Letter from George Mason to Arthur Lee (May

21, 1787), reprinted in 3 THE RECORDS OF THE

FEDERAL CONVENTION OF 1787 (Max Farrand

EE EES ennene ene nErns earn Te pin ENe Conn 14, 15

Louis Henkin, Jnternational Law as Law in the

United States, 82 Mich. L. REV. 1555 (1984)......... 18

Michael D. Ramsey, Jnternational Law as Part

of Our Law: A Constitutional Perspective, 29

Bil GEEs BEET CIID crtacnsencvnnnsannucsensanvmnioninnnncine 16

Paul J. Mishkin, The Federal “Question” in the

District Courts, 53 CoLum. L. REv. 157 (1953)....... 21

THE FEDERALIST No. 3 (John Jay) (Clinton

I il lara alinlig 16

THE FEDERALIST No. 80 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) .................ccececeeceeeeeeeees 16

William A. Fletcher, International Human

Rights in American Courts, 93 Va. L. REv.

i a el l ll 6

William A. Fletcher, The General Common Law

and Section 34 of the Judiciary Act of 1789:

The Example of Marine Insurance, 97 HARV.

SS SR SEES TREE Re CeO oad see 17

vi

TABLE OF AUTHORITIES — Continued

Page

William R. Casto, The Federal Courts’ Protec-

tive Jurisdiction Over Torts Committed in

Violation of the Law of Nations, 18 Conn. L.

I a a 7,10

William R. Casto, The New Federal Common

Law of Tort Remedies for Violations of Inter-

national Law, 37 RUTGERS L. J. 635 (2006) ............. 5

William S. Dodge, The Constitutionality of the

Alien Tort Statute: Some Observations on Text

and Context, 42 VA. J. INTL L. 687 (2002) ....... 16, 17

1

INTEREST OF AMICI CURIAE

Amici curiae respectfully submit this brief in

support of Petitioners, pursuant to Supreme Court

Rule 37.' Amici (listed in the Appendix) are professors

who study the modern and historical jurisdiction of

the federal courts and have an interest in the proper

understanding of the Alien Tort Statute (“ATS”), 28

U.S.C. § 1350, and of this Court’s decision in Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004).

+

SUMMARY OF ARGUMENT

The federal courts have jurisdiction over claims

filed pursuant to the Alien Tort Statute (“ATS”), 28

U.S.C. § 1350. ATS claims are based on federal com-

mon law, and the federal courts have Article III

federal question jurisdiction over federal common law

claims. The constitutionality of such jurisdiction

when the statute was enacted in 1789 is irrelevant to

an assessment of its constitutionality today. However,

the text of the ATS, the history of the statute, and

contemporaneous statements all indicate that an ATS

claim arises under federal law without regard to the

citizenship of the parties. Such claims fell within the

‘ Pursuant to Rule 37.6, counsel for amici states that no

counsel for a party authored this brief in whole or in part, and

that no person other than amici or their counsel made a mone-

tary contribution to the preparation or submission of this brief.

Petitioners and respondent have filed a letter of consent with

the Clerk of the Court.

2

Article III federal question jurisdiction of the federal

courts at the time it was enacted. Thus, the congres-

sional grant of subject matter jurisdiction over ATS

claims was constitutional in 1789 and remains consti-

tutional today, whether or not the parties are diverse.

4

ARGUMENT

The federal courts have subject matter juris-

diction over ATS claims for torts in violation of

international law. As this Court held in Sosa v. Alvarez-

Machain, 542 U.S. 692 (2004), the ATS, a jurisdic-

tional statute, is based on the assumption that feder-

al courts would use their common law power to

recognize causes of action for a limited number of

violations of international law. This was the assump-

tion at the time the statute was drafted, and, as Sosa

held, it remains the correct interpretation of the

statute today. As federal common law causes of ac-

tion, ATS claims clearly fall within constitutionally

authorized Article III federal question jurisdiction.

This congressional grant of subject matter jurisdic-

tion to the federal courts was constitutional under

Article III at the time it was enacted and is constitu-

tional now, as applied to both diverse and non-diverse

parties.

3

I. ARTICLE OI AUTHORIZES FEDERAL

SUBJECT MATTER JURISDICTION OVER

ALIEN TORT STATUTE CLAIMS BECAUSE

THOSE CLAIMS “ARISE UNDER” FEDER-

AL COMMON LAW.

The federal courts properly assert Article III

federal question jurisdiction over ATS claims because

such causes of action are based in federal common

law, which is within the scope of Article III federal

question jurisdiction.

The ATS grants the district courts “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.” 28 U.S.C. § 1350.* In Sosa, this Court

recognized that the ATS is jurisdictional, 542 U.S. at

712-14, “addressing the power of the courts to enter-

tain cases concerned with a certain subject,” id. at

714. After reviewing the history leading up to passage

of the ATS, Sosa held that Congress enacted the

statute with the understanding that the federal

courts would recognize common law causes of action

for a small number of international law violations. /d.

at 730. “The First Congress, which reflected the

understanding of the framing generation and included

* As originally enacted in the Judiciary Act of 1789, the ATS

stated that federal district courts “shall ... have cognizance,

concurrent with the courts of the several States, or the circuit

courts ... of all causes where an alien sues for a tort only in

violation of the law of nations or a treaty of the United States.”

Judiciary Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77.

4

some of the Framers, assumed that federal courts

could properly identify some international norms as

enforceable in the exercise of $ 1350 jurisdiction.” Jd.

The Court rejected the argument that the ATS was

“stillborn” because “there could be no claim for relief

without a further statute expressly authorizing

adoption of causes of action,” id. at 714:

It would have been passing strange for ...

Congress to vest federal courts expressly

with jurisdiction to entertain civil causes

brought by aliens alleging violations of the

law of nations, but to no effect whatever un-

til the Congress should take further action.

There is too much in the historical record to

believe that Congress would have enacted

the ATS only to leave it lying fallow indefi-

nitely.

Id. at 719. Instead, Congress recognized that “federal

courts could entertain claims once the jurisdictional

grant was on the books, because torts in violation of

the law of nations would have been recognized within

the common law of the time.” Jd. at 714. Sosa thus

concluded that the ATS “is best read as having been

enacted on the understanding that the common law

would provide a cause of action for the modest num-

ber of international law violations with a potential! for

personal liability at the time.” Jd. at 724. That is, “the

First Congress understood that the district courts

would recognize private causes of action for certain

torts in violation of the law of nations... .” Jd.

5

Sosa also emphasized that nothing since 1789

had eroded the federal court power to recognize

common law claims for violations of international law.

Id. at 724-25. In particular, nothing in Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938), which rejected the

general common law, undermined this historic judi-

cial power: “We think it would be unreasonable to

assume that the First Congress would have expected

federal courts to lose all capacity to recognize en-

forceable international norms simply because the

common law might lose some metaphysical cachet on

the road to modern realism.” Jd. at 730. Sosa leaves

clear that modern ATS claims, like those envisioned

in 1789, are based on common law. See William R.

Casto, The New Federal Common Law of Tort Reme-

dies for Violations of International Law, 37 RUTGERS

L. J. 635, 638 (2006) (“Sosa squarely holds that ATS

litigation is based upon a federal common law cause

of action. .. .”).

As federal common law causes of action, ATS

claims “arise under” federal law for the purposes of

both statutory and constitutional federal question

subject matter jurisdiction. Jllinois v. City of Milwau-

kee, 406 U.S. 91, 100 (1972) (“We see no reason not to

give ‘laws’ its natural meaning, and therefore con-

clude that § 1331 jurisdiction will support claims

founded upon federal common law as well as those of

a statutory origin.” (citation omitted)); 19 CHARLES

ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.

COOPER, FEDERAL PRACTICE AND PROCEDURE § 4514 (2d

ed. 1996) (“A case ‘arising under’ federal common law

6

presents a federal question and as such is within the

original subject-matter jurisdiction of the federal

courts... .”). “[O]nce Sosa recognized a federal right

of action, that recognition was sufficient to bring such

claims within current understandings of Article III’s

‘arising under’ jurisdiction.” Ernest A. Young, Sosa

and the Retail Incorporation of International Law,

120 Harv. L. Rev. F. 28, 33 (2007); see William A.

Fletcher, International Human Rights in American

Courts, 93 Va. L. REV. 653, 664-65 (2007) (Sosa made

clear that “the federal common law of customary

international law is federal law in ... the jurisdic-

tion-conferring ... sense.... [T]he only basis for the

federal court to hear an alien versus alien suit under

the ATS is the federal nature of the substantive

claim.”).

A recent law review article has suggested that, as

understood in 1789, the constitutional authorization

of federal question jurisdiction did not encompass

claims for international law violations filed by non-

diverse parties, such as claims between aliens. An-

thony J. Bellia Jr. & Bradford R. Clark, The Alien

Tort Statute and the Law of Nations, 78 U. Cui. L.

Rev. 445, 525-28 (2011); see also Curtis A. Bradley,

The Alien Tort Statute and Article III, 42 Va. J. INT'L

L. 587, 597-98, 626-29 (2002) (making similar argu-

ment in a pre-Sosa article). As explained in the

following section, this argument is wrong as a matter

of history: federal court assertions of subject matter

jurisdiction over ATS claims filed by non-diverse par-

ties were constitutional in 1789. More significantly,

7

the argument is irrelevant. The ATS remains in the

federal code, having been amended slightly and re-

enacted multiple times over the past 225 years. See

William R. Casto, The Federal Courts’ Protective

Jurisdiction Over Torts Committed in Violation of the

Law of Nations, 18 CONN. L. REv. 467, 468 n.4 (1986)

(detailing revisions to the statute). Sosa leaves no

doubt that ATS claims today are based in federal

common law, and federal common law claims clearly

trigger federal subject matter jurisdiction. That is, as

Sosa held, federal courts today have the power to

recognize federal common law claims for a narrow

range of violations of international law and to assert

subject matter jurisdiction over those claims pursu-

ant to Article III. Whether they had that power in

1789 under the same or different understandings of

causes of action and “arising under” jurisdiction is

irrelevant to the constitutionality of that practice

today.

Il. CONGRESS’ RECOGNITION OF FEDERAL

SUBJECT MATTER JURISDICTION OVER

CLAIMS ASSERTED BY NON-DIVERSE

PARTIES FOR TORTS IN VIOLATION OF

THE LAW OF NATIONS WAS CONSTITU-

TIONAL WHEN ENACTED.

Professors Bellia and Clark assert that the ATS

grant of subject matter jurisdiction over claims in-

volving non-diverse parties was unconstitutional at

the time the statute was enacted. They argue that

Congress must, therefore, have intended the statute

8

to apply only to diverse parties. Bellia & Clark,

supra, at 525-28; see Bradley, supra, at 626-29 (mak-

ing a similar argument in a pre-Sosa article). As

explained in the prior section, this argument is

irrelevant to a modern understanding of the constitu-

tionality of the ATS as applied to non-diverse parties.

But the argument is also wrong, because a diversity

theory of the ATS is inconsistent with the language

and history of the statute and with the holding of

Sosa, and because the ATS, when enacted as well as

today, falls within the constitutionally authorized,

Article III federal question jurisdiction of the federal

courts.

A. The Diversity Theory of the Alien Tort

Statute Ignores the Language and His-

tory of the Statute and the Holding of

Sosa.

The diversity theory ignores the clear language of

the Alien Tort Statute, which requires an alien plain-

tiff, but makes no reference whatsoever to the citi-

zenship of defendants. As this Court has noted, “The

Alien Tort Statute by its terms does not distinguish

among classes of defendants... .” Argentine Republic

vu. Amerada Hess Shipping Corp., 488 U.S. 428, 438

(1989). The best evidence of the congressional mean-

ing is the statute’s text. See Conn. Nat'l Bank v.

Germain, 503 U.S. 249, 253-54 (1992) (“[A] court

should always turn first to one, cardinal canon before

all others. We have stated time and again that courts

must presume that a legislature says in a statute

9

what it means and means in a statute what it says

there. When the words of a statute are unambiguous,

then, this first canon is also the last: judicial inquiry

is complete.” (citations and internal quotation marks

omitted)). Moreover, the statute applies to “any civil

action” by an alien for a tort in violation of the law of

nations, and, as originally enacted, applied to “all

causes” where an alien sued for such torts. The text of

the ATS is clear and decisive on this issue: the statute

provides jurisdiction over such claims regardless of

the citizenship of the defendant.

The reference to treaty violations provides fur-

ther textual support. The ATS provides jurisdiction

over torts “committed in violation of ... a treaty of

the United States.” This provision relies on Article

IIl’s authorization of federal court jurisdiction over

claims arising under a treaty, as applies to both

diverse and non-diverse parties, with no restrictions

on the citizenship of the defendant. U.S. Const. art.

III, § 2, cl. 1 (“The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Consti-

tution, the Laws of the United States, and Treaties

made, or which shall be made, under their Author-

ity.”). There is no basis in the text of the statute to

infer a distinction between the categories of defen-

dants subject to suit under the “law of nations” prong

and those subject to suit under the “treaty” prong of

the statute.

The diversity theory also ignores the historical

evidence that the ATS was conceived, in part, as a

response to high-profile cases involving assaults on

10

foreign diplomats, at least one of which involved two

aliens. In the 1784 Marbois affair, which is discussed

at length in Sosa, 542 U.S. at 716-17, a French citizen

assaulted a French diplomat. The French government

filed a formal protest and its minister threatened to

leave unless the French received “full satisfaction.”

Id. at 717 n.11. Members of the administration wrote

about the incident and about their concern over its

potential repercussions, in dozens of letters. Casto, 18

Conn. L. REv. at 492 n.143 (listing multiple refer-

ences to the Marbois affair in correspondence among

the framers). The incident was clearly on the minds of

the delegates to the Constitutional Convention as

well as the members of Congress who enacted the

ATS as part of the First Judiciary Act. Id. at 493-95.

This history suggests that a jurisdictional statute

limited to diverse parties would not have responded

to the concerns underlying the ATS. As Sosa recog-

nized, the ATS was enacted to further the goal of

offering a federal forum for resolution of issues in-

volving the law of nations. 542 U.S. at 717-18. In-

deed, this Court has long described the ATS as one of

a series of constitutional and statutory provisions

“reflecting a concern for uniformity in this country’s

dealings with foreign nations and indicating a desire

to give matters of international significance to the

jurisdiction of federal institutions.” Banco Nacional

de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964).

Surely Congress did not intend to leave alien-alien

claims for violations of the law of nations to the

general jurisdiction of the state courts.

ll

Moreover, if ATS jurisdiction were intended to

apply only to cases involving diverse parties, contem-

porary cases involving alien-alien complaints surely

would have triggered some discussion. But the sur-

viving references to the Alien Tort Statute contain no

reference to a requirement that the parties be di-

verse. Indeed, no historical statements at any point

support the claim that the statute was limited to

alien vs. citizen claims.’ By contrast, two cases from

the 1790s discuss the application of the ATS to claims

involving foreign citizens, but neither opinion con-

tains any indication that they considered the citizen-

ship of the parties relevant to the jurisdictional

analysis. In Moxon v. The Fanny, 17 F. Cas. 942 (D.

Pa. 1793) (No. 9895), British ship-owners sued the

French privateer who had captured the ship. The

court rejected ATS jurisdiction because the claim

* Professors Bellia and Clark do provide historical evidence

that the framers and the members of Congress who enacted the

ATS were concerned about the detrimental foreign affairs

impact of violations of the law of nations committed by U.S.

citizens against aliens. Bellia & Clark, supra, at 494-507. The

ATS responded to this concern by affording an alien injured by a

citizen the right to sue in federal court without meeting the

amount-in-controversy requirement for diversity jurisdiction.

But they provide no evidence that this was the sole factor

motivating Congress to enact the statute. And, as discussed in

what follows, there is ample evidence that Congress was focused

on several additional concerns: minimizing the foreign policy

repercussions of alien-on-alien violations; ensuring that federal

courts — not state courts — heard cases requiring application of

international law; and providing broad remedies for violations of

the law of nations.

12

sought restitution as well as damages and, therefore,

was not a suit “for a tort only.” Jd. at 948. The opinion

did not mention that the parties were both aliens.

Similarly, Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C.

1795) (No. 1607), involved a French privateer’s cap-

ture of a Spanish ship carrying enslaved persons

“mortgaged” to a British citizen. After the British

mortgagee’s agent seized and sold the slaves, the

French privateer sued for the proceeds. The real

party in interest — the British mortgagee — was an

alien, and the opinion makes no mention of the

citizenship of the agent. In these two decisions dis-

cussing the jurisdictional reach of the ATS, neither

court indicated that the citizenship of the parties

might be relevant to the jurisdictional issue.

Finally, importing a diversity of citizenship

requirement into the ATS would conflict with this

Court’s holding in Sosa. Sosa discussed the history of

the statute at length and concluded that Congress

intended the ATS to apply to the “modest number of

international law violations with a potential for

personal liability at the time.” 542 U.S. at 724. Such

torts, of course, could have been committed by aliens

or citizens. Sosa held that the torts actionable under

the ATS were and are limited by the potential for

personal liability and by the clarity of definition and

degree of acceptance of the international law viola-

tions, not by the citizenship of the parties.

13

B. The Alien Tort Statute, When Enacted,

Implemented Article III Federal Ques-

tion Jurisdiction.

The crux of the diversity-only argument is an ill-

founded, reverse-logic argument. Bellia and Clark

begin with the presumption that the ATS grant of

federal court jurisdiction over claims based on inter-

national law could not have been constitutional in

1789 under any theory except diversity jurisdiction.

See Bellia Jr. & Clark, supra, at 525-28. Working

from that (erroneous) assumption, they distort the

language of the statute to force it to meet the re-

quirements of diversity; that is, they conclude that

Congress must have intended the ATS to apply only

to claims between aliens and U.S. citizens, because

they insist that statute was constitutional only if so

limited. The initial presumption, however, is wrong.

In 1789, as now, a congressional grant of federal

subject matter jurisdiction over common law claims

based on the law of nations fell comfortably within

the reach of the Article III definition of federal ques-

tion jurisdiction.

Asserting federal control over foreign affairs,

including the interpretation and enforcement of

international law, was one of the needs driving the

decision to reformulate the Confederation. See gener-

ally David M. Golove & Daniel J. Hulsebosch, A

Civilized Nation: The Early American Constitution,

the Law of Nations, and the Pursuit of International

Recognition, 85 N.Y.U. L. REv. 932 (2010). As Sosa

noted, a number of incidents, including the Marbois

14

affair, summarized above, “intensified” concerns over

“the Continental Congress’ incapacity to deal with”

cases involving violations of the law of nations. 542

U.S. at 716. “[C]oncern over the inadequate vindica-

tion of the law of nations persisted through the time

of the constitutional convention.” Jd. at 717. The

framers of the Constitution, several of whom were

members of the Congress that enacted the ATS,

repeatedly stated that the Constitution responded to

that need, in part by granting federal courts jurisdic-

tion over cases raising international law issues.

Shortly before the start of the Constitutional

Convention, Virginia delegate George Mason wrote

that with regard to the courts “(t]he most prevalent

idea [was]... to establish .. . a judiciary system with

cognizance of all such matters as depend upon the

law of nations, and such other objects as the local

courts of justice may be inadequate to.” Letter from

George Mason to Arthur Lee (May 21, 1787), reprinted

in 3 THE RECORDS OF THE FEDERAL CONVENTION OF

1787, at 24 (Max Farrand ed., 1911) (“Farrand”).

Fellow Virginian Edmund Randolph complained in

his opening speech of the inability under the Articles

of Confederation to “cause infractions of treaties or of

the law of nations to be punished,” 1 Farrand, supra,

at 19, and laid before the Convention the Virginia

Plan, creating federal courts with jurisdiction over

“questions which may involve the national peace and

harmony.” 1 Farrand, supra, at 22. On the same day,

Charles Pinckney of South Carolina proposed his own

plan expressly providing for a federal court to hear

15

appeals from the “Courts of the several States in all

Causes wherein Questions shall arise on the Construc-

tion of Treaties made by U.S. — or on the Law of

Nations. ...” 3 Farrand, supra, at 608.‘ As Edwin

Dickinson has noted, “The Convention was in sub-

stantial agreement that there must be a national

judiciary and that it must have, at least in the last

resort, a paramount authority with respect to the

Law of Nations and treaties.” Edwin D. Dickinson,

The Law of Nations as Part of the National Law of the

United States, 101 U. PA. L. REv. 26, 38 (1952).

In the Committee of Detail draft reported to the

Convention, the federal question jurisdiction of the

federal courts was limited to “cases arising under

laws passed by the Legislature of the United States.”

2 Farrand, supra, at 186. On August 27, however, the

delegates voted without explanation to strike the

words “passed by the Legislature.” See 2 Farrand,

supra, at 423-24, 431. This introduced a difference in

text between what would become Article III and what

would become the Supremacy Clause of Article VI,

which refers to “the Laws of the United States which

shall be made in Pursuance {of the Constitution].”

U.S. Const. art. VI, cl. 2 (emphasis added). As

* In June, a third plan was introduced — the New Jersey

Plan — which made no reference to the law of nations in its

proposal for the judiciary. See 3 Farrand, supra, at 242. A

Committee of Detail draft based on the New Jersey Plan,

however, provided for federal appellate jurisdiction “in all Cases

. which may arise ... on the Law of Nations.” 2 Farrand,

supra, at 157.

16

Michael Ramsey has noted, reading Article III’s

“Laws of the United States” to include the law of

nations “accounts for the difference in phrasing.”

Michael D. Ramsey, Jnternational Law as Part of Our

Law: A Constitutional Perspective, 29 PEpp. L. REv.

187, 200 (2001).°

During the ratification debates, both Federalists

and Anti-Federalists read Article III to include cases

arising under the law of nations. See generally Wil-

liam S. Dodge, The Constitutionality of the Alien Tort

Statute: Some Observations on Text and Context, 42

VA. J. INTL L. 687, 707-09 (2002). John Jay wrote

that “[uJnder the national government, treaties and

articles of treaties, as well as the laws of nations, will

always be expounded in one sense and executed in

the same manner.... The wisdom of the convention

in committing such questions to the jurisdiction and

judgment of courts appointed by and responsible only

to one national government cannot be too much

commended.” THE FEDERALIST No. 3, at 41, 43 (John

Jay) (Clinton Rossiter ed., 1961) (emphasis added);

see also THE FEDERALIST No. 80, at 475-76 (Alexander

* Supreme Court Justice William Patterson concurred in

the view that the law of nations fell within the jurisdiction of

Article III, because, in his view the law of nations “arose under”

the Constitution. See Draft Opinion of William Patterson,

reprinted in Casto, 18 CONN. L. REV. at 526. The important point

here is that, at the time the Constitution was drafted and the

ATS was enacted into law, key jurists agreed that a claim for a

violation of the law of nations triggered the “arising under”

jurisdiction of the federal] courts.

17

Hamilton) (Clinton Rossiter ed., 1961) (noting that

“cases arising upon treaties and the laws of nations

. may be supposed proper for the federal jurisdic-

tion”). Anti-Federalist William Grayson, on the other

hand, complained at the Virginia ratifying convention

that “(t]here is to be one Supreme Court — for chan-

cery, admiralty, common pleas, and exchequer, ... to

which are added criminal jurisdiction and all cases

depending on the law of nations — a most extensive

jurisdiction!” 10 THE DOCUMENTARY HISTORY OF THE

CONSTITUTION 1445-46 (John P. Kaminski & Gaspare

J. Saladino eds., 1993) (emphasis added).° “None of

the speakers who followed Grayson at the Virginia

Convention controverted his assertion that the judi-

cial power granted by Article III would include ‘all

cases depending on the law of nations.’” Dodge,

supra, at 708-09.’

The framers considered the law of nations to be

part of the general common law, binding on both the

federal and state governments. See William A.

* Grayson referred to the Supreme Court because Article III

did not require Congress to create inferior courts. See U-S.

Const. art. UI, § 1.

" James Madison did argue that “[wlith respect to the laws

of the Union, it is so necessary and expedient that the Judicial

power should correspond with the Legislative, that it has not

been objected to.” 10 THE DOCUMENTARY HISTORY OF THE CONSTI-

TUTION, supra, at 1413. But this is consistent with Grayson’s

reading, for Congress had legislative power under the Define

and Punish Clause “To define and punish Piracies and Felonies

committed on the high Seas, and Offenses against the Law of

Nations.” U.S. Const. art. I, § 8, cl. 10.

18

Fletcher, The General Common Law and Section 34 of

the Judiciary Act of 1789: The Example of Marine

Insurance, 97 HARV. L. REV. 1513, 1517 (1984); Louis

Henkin, International Law as Law in the United

States, 82 Micu. L. Rev. 1555, 1557-58 (1984). As

Attorney General Randolph wrote in 1792, “[t]he law

of nations, although not specially adopted by the

constitution or any municipal act, is essentially a part

of the law of the land. Its obligation commences and

runs with the existence of a nation... .” 1 U.S. Op.

Att’y Gen. 26, 27 (1792) (Edmund Randolph). During

the 1790s, the Washington Administration brought a

series of common law prosecutions against Americans

for having violated the law of nations on neutrality.

During one of these prosecutions, Chief Justice John

Jay expressly defined “Laws of the [U]nited States” to

include “[t}he law of nations.” See John Jay’s Charge

to the Grand Jury of the Circuit Court for the District

of Virginia (May 22, 1793) in 2 THE DOCUMENTARY

HISTORY OF THE SUPREME COURT OF THE UNITED

STATES, 1789-1800, at 381 (Maeva Marcus ed., 1988).

When Congress enacted the ATS as part of the

Judiciary Act of 1789, it required that the plaintiff be

an alien but did not require that the defendant be a

U.S. citizen. Oliver Ellsworth, who drafted the ATS,

had served on the Committee of Detail at the Consti-

tutional Convention and must have thought such a

limitation unnecessary in light of the breadth of

Article III. Moreover, Congress had the power to

enact laws defining and punishing “Offenses against

the Law of Nations,” U.S. Const. art. I, § 8, cl. 10, and

19

the federal courts would have had jurisdiction over

claims under such laws pursuant to Article III. See

Bradley, supra, at 600 (acknowledging that congres-

sional statutes authorizing claims for violations of

international law would fall within Art. III). Given

that the First Congress did not intend the ATS to “l[ie]

fallow,” Sosa, 542 U.S. at 719, surely its members

would have enacted a statute authorizing specific

claims if they thought common law claims for viola-

tions of the law of nations were not within the reach of

Article HI. The absence of any such legislation sup-

ports the view that they thought this step unnecessary

in light of their understanding of Article III."

The framers’ understanding that the language of

Article III implemented their intent to afford federal

courts jurisdiction over cases founded on the law of

nations is consistent with this Court’s historically

expansive interpretation of Article III’s grant of

federal question jurisdiction. The constitutional test

* As discussed in the previous section, the possibility that

ATS suits between two aliens might exceed the bounds of Article

III apparently did not occur to courts applying the ATS during

the 1790s. See Moxon, 17 F. Cas. 942; Bolchos, 3 F. Cas. 810. If it

was clear that ATS suits between two aliens fell outside the

bounds of Article III, as Bradley, Bellia, and Clark suppose, it is

odd that neither the attorneys nor the court mentioned the

citizenship of the parties. In fact, there is no historical record

that the diversity theory occurred to anyone until it was raised

in law review articles more than two hundred years after

ratification of the Constitution and passage of the ATS, and

more than 20 years after the Fildrtiga decision. Fildrtiga v.

Pefia-Irala, 630 F.2d 876 (2d Cir. 1980).

20

for “arising under” jurisdiction is, of course, signifi-

cantly broader than that required by 28 U.S.C.

§ 1331, the statutory grant of federal question juris-

diction.” As interpreted by Chief Justice Marshall

early in the nineteenth century, Article III jurisdic-

tion requires only that a federal issue “forms an

ingredient of the original cause. ... Whether it be in

fact relied on or not, ... it is still a part of the

cause... .” Osborn v. Bank of the United States, 22

U.S. (9 Wheat.) 738, 823, 824 (1824). “Osborn thus

reflects a broad conception of ‘arising under’ jurisdic-

tion, according to which Congress may confer on the

federal courts jurisdiction over any case or controver-

sy that might call for the application of federal law.”

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.

480, 492 (1983). The framers understandably as-

sumed that claims based on the law of nations would

involve multiple issues that “might call for the appli-

cation of federal law,” and thus would fall within the

expansive reach of Article III. Id."" Osborn’s broad

* Statutory federal question jurisdiction under § 1331

generally requires that a plaintiff state a cause of action created

by federal law. See Grable & Sons Metal Products, Inc. v. Darue

Engineering & Manufacturing, 545 U.S. 308, 311-12 (2005)

(stating cause of action requirement and recognizing narrow

exception to this rule).

“The possibility that an issue of federal law will arise in a

suit involving customary international law (even assuming that

customary international law is not itself federal) — for example,

issues about the allocation of powers relating to foreign relations

~ is hardly remote.” Carlos M. Vazquez, Customary International

Law as U.S. Law: A Critique of the Revisionist and Intermediate

(Continued on following page)

21

reading of Article III reflects the jurisdictional under-

standings of the founding generation, and its applica-

tion to cases raising questions of international law is

consistent with the views expressed by the framers."

Further, the argument that at the time the ATS

was enacted, claims based on the law of nations did

not “arise under the laws of the United States” be-

cause the law of nations constituted general common

law, not federal common law, is based on an ahistori-

cal understanding of the common law. In the late

eighteenth century, the law of nations was considered

part of the general common law, shared by the federal

and state courts, and including the law merchant and

other bodies of law. But from the beginning, courts

and scholars recognized pockets of common law, such

as norms governing state-to-state relations, that were

treated as federal law, and that, over time, provided

the basis for the federal common law recognized by

Erie. See Anthony J. Bellia Jr. & Bradford R. Clark,

The Federal Common Law of Nations, 109 CoLum. L.

Positions and a Defense of the Modern Position, 86 NOTRE DAME

L. Rev. 1495 (2011).

" As Professor Vazquez has explained, additional theories

of federal question jurisdiction would also explain the framers’

understanding that cases alleging violations of international law

fell within federal question jurisdiction. See Vazquez, supra, at

1506-07 (citing Herbert Wechsler, Federal Jurisdiction and the

Revision of the Judicial Code, 13 Law & CONTEMP. PROBS. 216,

224-25 (1948), and Paul J. Mishkin, The Federal “Question” in

the District Courts, 53 CoLum. L. REv. 157, 192 (1953)).

22

REV. 1 (2009) (distinguishing certain norms of inter-

national law governing state-to-state relations from

other norms of the law of nations); Vazquez, supra, at

1600-02 (discussing the implications of the Bellia and

Clark approach); Beth Stephens, The Law of Our

Land: Customary International Law as Federal Law

After Erie, 66 FORDHAM L. REv. 393, 418-25 (1997)

(discussing the pre-Erie development of federal

common law). The Erie decision rejected the concept

of general federal common law, but cleared the way

for a genuine federal common law. Later cases re-

categorized aspects of the old general common law,

recognizing in retrospect that they actually consti-

tuted — and functioned as — federal common law.

Stephens, supra, at 440-43.“ As discussed above,

ample evidence indicates that the framers understood

that claims based on the law of nations fell within the

subject matter jurisdiction of the federal courts.

Labeling such claims “general commor. !aw” does not

undermine this history, because the broad range of

norms encompassed by the general common law

‘ Some scholars point to two pre-Erie cases, New York Life

Insurance Co. v. Hendren, 92 U.S. 286 (1875), and Ker v. Illinois,

119 U.S. 436 (1886), to support the view that the general

common law at the time the ATS was enacted was not jurisdic-

tion granting. Hendren, however, turned on interpretation of a

particular jurisdictional statute. And Ker contains a one-line,

unexplained statement on an issue that was not argued by the

parties. See discussion in Vazquez, supra, at 1529-32. Together,

these ambiguous precedents constitute a weak foundation for an

interpretation of a statute enacted over 100 years earlier.

23

included norms that the courts and Congress treated

as part of federal law.

* * *

The diversity theory of the ATS conflicts with the

plain language of the statute, with the historical

records explaining Congress’ purpose in enacting the

ATS, and with the holding of Sosa. The theory rests

on the erroneous assumption that no other approach

explains the constitutionality of the provision at the

time it was enacted.

The diversity theory also conflicts with the

holdings of dozens of federal courts applying the ATS

to claims between aliens, starting with Fildrtiga v.

Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and continu-

ing unabated for the ensuing 32 years. This Court

said eight years ago in Sosa that Congress had “ex-

pressed no disagreement” with the interpretation of

the ATS adopted by Fildrtiga and followed by other

federal courts. 542 U.S. at 730-31. Similarly, Con-

gress has “expressed no disagreement” with the

courts’ application of the ATS to alien-to-alien claims.

Congress, as always, has the power to repeal or

amend the ATS, and has failed to do so since 1980.

—~

24

CONCLUSION

For the foregoing reasons, this Court should

reject any claim that the ATS is unconstitutional as

applied to claims between non-diverse parties.

Dated: June 12, 2012

Respectfully submitted,

FREDERICK W. MorRISs*

STUART ALGER

SHARNA WAHLGREN

MATTHEW D. MELEWSKI

LEONARD, STREET AND DEINARD

150 South Fifth Street

Minneapolis, MN 55402

(612) 335-1500

*Counsel of Record

Counsel for Amici Curiae

App. 1

APPENDIX

LIST OF AMICI CURIAE

Martin S. Flaherty

Martin S. Flaherty is the Leitner Family Professor of

Law and Co-Founding Director of the Leitner Center

for International Law and Justice at Fordham Law

School. He is also a Visiting Professor at the Woodrow

Wilson School of Public and International Affairs at

Princeton University, where he was a Fellow in the

Program in Law and Public Affairs. Flaherty’s publi-

cations focus on constitutional law and history, for-

eign affairs, and international human rights and

have appeared in such journals as the Columbia Law

Review, the Yale Law Journal, the Michigan Law

Review, and the University of Chicago Law Review.

Formerly chair of the New York City Bar Association’s

International Human Rights Committee, he is also a

member of the Council on Foreign Relations.

John V. Orth

John V. Orth is the William Rand Kenan, Jr. Profes-

sor of Law at the University of North Carolina School

of Law. He is the author of The Judicial Power of the

United States: The Eleventh Amendment in American

History (1987), Combination and Conspiracy: The

Legal History of Trade Unionism, 1721-1906 (1991),

The North Carolina State Constitution: A Reference

Guide (1993), Due Process of Law: A Brief History

(2003), How Many Judges Does it Take to Make a

Supreme Court? and Other Essays on Law and the

App. 2

Constitution (2006), and Reappraisals in the Law of

Property (2010), as well as numerous scholarly arti-

cles. He was an associate editor (for law) of the Amer-

ican National Biography and contributed to that

series, as well as to The Oxford Companion to the

Supreme Court of the United States, The Oxford

Companion to American Law, The Oxford Interna-

tional Encyclopedia of Legal History, and The Yale

Dictionary of Legal Biography. His publications have

been cited by federal and state courts, including the

United States Supreme Court.