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11/08/2017

More on Jesner v. Arab Bank and the Original Meaning of the Alien Tort Statute
Michael Ramsey

At Just Security, a guest post by me: A Better Solution in Jesner v. Arab Bank.  Here is the introduction:

In Jesner v. Arab Bank, the Supreme Court is asked to decide whether corporations can be sued under the Alien Tort Statute (ATS).  The Court faced this question in the 2012 case, Kiobel v. Royal Dutch Petroleum Co., but avoided it by deciding the case on other grounds.  The court should avoid the issue again in Jesner – again because there is an easier way to resolve the case.

Jesner involves a claim by non-U.S. plaintiffs against a non-U.S. defendant (a bank based in Jordan) for injuries suffered at the hands of a non-U.S. terrorist group (Hamas) outside the U.S. (in Israel and the Palestinian territories).  The bank is alleged to have provided financial services to Hamas affiliates, but the only connection to the U.S. is that some of the funds are said to have been channeled through the bank’s New York branch.  The purpose of the ATS was not to facilitate this sort of claim, and this sort of claim would not have been subject to ATS jurisdiction when the ATS was originally enacted in 1789. 

For me, the key is that the original meaning of Article III of the Constitution does not extend federal jurisdiction to alien-versus-alien claims (except for certain subjects not relevant here), so when the Alien Tort Statute was adopted in 1789, a case like Jesner could not have been brought under it.  (The statute itself does not contain this limit expressly, but it was necessarily limited by the Constitution).  Here is the core argument:

Some scholars contend that the law of nations was understood to be part of the “Laws of the United States” in Article III, but Article III’s text and structure are inconsistent with this reading.  First, Article III specifically lists cases arising under “this Constitution, Laws of the United States and treaties.”  Thus the category “Laws of the United States” did not include either the Constitution or U.S. treaties, even though those are obviously in some sense laws of the United States: the Constitution lists them as part of “the supreme Law of the Land” in Article VI.  It is hard to see how the law of nations – which is not listed as part of Article VI’s supreme law – could be considered part of Article III’s “Laws of the United States” when the Constitution and treaties were not.  It seems much more likely that “Laws of the United States” in Article III meant laws made by the United States, i.e., statutes enacted by Congress.  That apparently was Hamilton’s view in Federalist 80, where in describing Article III’s categories of jurisdiction he referred to “all those [cases] that arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation.”

Further, the structure of Article III shows that, rather than making all of the law of nations a jurisdictional category, the framers picked the types of law-of-nations cases they thought most appropriate for federal jurisdiction.  Thus for example, Article III separately lists admiralty cases and cases involving ambassadors as categories of jurisdiction.  If not governed by U.S. statues or treaties (where there would be “arising under” jurisdiction), these cases would at the time usually have been governed by the law of nations.  But if the law of nations as a whole was already part of federal jurisdiction, these jurisdictional grants would be largely superfluous.  The better view of Article III is that the framers gave specific grants of jurisdiction over particular kinds of law-of-nations cases.  Again, this is confirmed by Federalist 80, in which Hamilton discussed the specific jurisdictional grants as cases likely governed by the law of nations, but made no mention of a general grant of jurisdiction over all law-of-nations cases.

Changes in modern law have opened the door to the Court creating federal common law causes of action that may extend jurisdiction to alien-versus-alien suits in unusual circumstances involving issues of particular concern to the federal government.  But this isn't one of those circumstances, so (I argue) the Court need not, and should not, make the extension here.  Declining to extend jurisdiction would keep the result aligned with Congress' original goals in passing the statute and would conform to the original meaning of the Constitution.

(Note: this is a somewhat more polished and focused version of a post I did here on this blog.)

For a similar but somewhat distinct argument by Professors A.J. Bellia (Notre Dame) and Bradford Clark (GW), see here (at Lawfare).  For a contrary view see here from Professor William Dodge (UC Davis) (also at Just Security; the discussion of the Bellia/Clark position is toward the end of the post).