“Or a Treaty of the United States”: Treaties and the Alien Tort Statute After Kiobel
The decision in Kiobel v. Royal Dutch Petroleum Co. left open a number of questions about the scope of the Alien Tort Statute (ATS). One such question is the extent to which Kiobel ‘s holding on extraterritoriality applies to the oft-neglected final words of the ATS: “The district courts shall have original 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.”What if one such treaty obliged the United States to provide a civil forum for litigation ofhumanrights violations that occurred abroad and did not involve piracy?
CONTEMPORARY PRACTICE OF THE UNITED STATES RELATING TO INTERNATIONAL LAW: United States Signs One-Hundredth Article 98 Agreement
In June 2010, the U.S. Supreme Court held unanimously that key provisions of the U.S. securities laws do not apply to a private suit involving a so-called “foreign cubed” securities case, where a foreign purchaser purchased foreign securities from a foreign seller in a foreign securities market. In an opinion by Justice Scalia in Morrison v. National Australia Bank, the Court emphasized the presumption that U.S. statutes should be read not to have extraterritorial effect, absent contrary congressional intent. Eight justices concurred in the result. Justice Sotomayor did not participate; Justices Breyer and Stevens wrote separate opinions. The Australian plaintiffs in the case bought shares of National Australia Bank (National) on the Australian Securities Exchange. National subsequently had to write down the value of its U.S. subsidiary HomeSide Lending, a mortgage-servicing company headquartered in Florida. The plaintiffs alleged that HomeSide and its officers concocted fraudulent financial results inflating the company’s value, and that National knew of this scheme. Plaintiffs sued in U.S. District Court for the Southern District of New York, alleging violations of sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 and Securities and Exchange Commission Rule 10b–5. The district court dismissed the case for lack of jurisdiction. The U.S. Court of Appeals for the Second Circuit affirmed, applying a body of case law that it had developed regarding the extraterritorial reach of the U.S. securities laws. In brief, these earlier cases assumed that Congress had not considered the question of extraterritorial reach when the securities laws were adopted. Accordingly, a court should attempt to discern what Congress would have done had it addressed the issue. Starting from this premise, the lower courts (particularly the Second Circuit) developed tests to determine whether particular foreign conduct would fall under the U.S. securities laws. In a strongly worded opinion by Justice Scalia, the Supreme Court decided that the case should, indeed, be dismissed, but not for lack of jurisdiction. Instead, the Court viewed the territorial reach of the U.S. securities laws as a merits issue and concluded that they did not reach the transaction at issue. The Court stressed in this context that unless Congress indicates a contrary intent, its enactments apply only within the territorial jurisdiction of the United States.
The Wheel of Law: India's Secularism in Comparative Constitutional Context
How can religious liberty be guaranteed in societies where religion pervades everyday life? In The Wheel of Law, Gary Jacobsohn addresses this dilemma by examining the constitutional development of secularism in India within an unprecedented cross-national framework that includes Israel and the United States. He argues that a country's particular constitutional theory and practice must be understood within its social and political context. The experience of India, where religious life is in profound tension with secular democratic commitment, offers a valuable perspective not only on questions of jurisprudence and political theory arising in countries where religion permeates the fabric of society, but also on the broader task of ensuring religious liberty in constitutional polities. India's social structure is so entwined with religion, Jacobsohn emphasizes, that meaningful social reform presupposes state intervention in the spiritual domain. Hence India's "ameliorative" model of secular constitutionalism, designed to ameliorate the disabling effects of the caste system and other religiously based practices. Jacobsohn contrasts this with the "visionary" secularism of Israel, where the state identifies itself with a particular religion, and with America's "assimilative" secularism. Constitutional globalization is as much a reality as economic globalization, Jacobsohn concludes, and within this phenomenon the place of religion in liberal democracy is among the most vexing challenges confronting us today. A richly textured account of the Indian experience with secularism, developed in a broad comparative framework, this book is for all those seeking ways to respond to this challenge.