Congratulations to originalist scholars Anthony Bellia Jr. (Notre Dame ) and Bradford Clark (George Washington), whose scholarship was discussed in yesterday’s Supreme Court oral argument in Cisco Systems v. Doe:
JUSTICE BARRETT: So one difficulty or question, I should say, that I have about your front-line argument about freezing this with
the Blackstone three [ed.: that is, international law violations involving piracy, assaults on ambassadors, and violations of safe conducts, as discussed in Blackstone’s Commentaries] is that in Sosa, the Court said it had little evidence to think that the First Congress had in mind anything beyond the Blackstone three.
But I’m not sure that’s right. I mean, Professors Bellia and Clark have done research to suggest that, in fact, at the time that the [Alien Tort Statute] was enacted, the Law of Nations did recognize causes of action for the violence committed by an American citizen against a foreign national. Do you want to address that?
MR. SHANMUGAM [counsel for Cisco]: I suppose that the Court could — I’m aware of the Law Review article by those two distinguished professors. And I think that the Court, if it so chose, could leave the door slightly open to parties coming forward to make the case that there were other norms that would have been recognized by the First Congress.
That is not what is at issue here. …
Well, yes and no. The main issue in Cisco is whether the federal courts should recognize (meaning, really, create) an implied federal cause of action under the Alien Tort Statute (ATS) for aiding and abetting violations of international law. There was a lot of talk in the oral argument about what the First Congress (which enacted the ATS) thought or intended or would have thought or intended. In my view this is all misconceived. The ATS’s text is clear: it gives federal courts jurisdiction over tort claims involving a violation of international law. It does not do anything else. It does not authorize federal courts to create causes of action — an idea which would have been entirely unintelligible to the First Congress. A court with jurisdiction looks to existing applicable law, whether it be federal statutory law, state statutory law, foreign law, or common law, to see if there is a cause of action. And that court does not get to decide whether it will or will not apply an otherwise applicable cause of action.
So the question in Cisco (provided the Court has jurisdiction, which it does) should be not whether federal courts should create a federal cause of action for aiding and abetting, but whether some existing applicable source of law contains such a cause of action. That is how the First Congress would have understood the matter.
Again, the irony of Cisco is that the ATS plaintiffs bar spent decades arguing that under the ATS, federal courts could in their discretion decide what sorts of causes of action were appropriate to be recognized — and now they have a Court that is not inclined to recognize the causes of action they want.
Posted at 6:26 AM