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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A095

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 569 U.S. 108

## Text

-_

| 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A095. Public record. Not legal advice.