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Jesner v. Arab Bank

  • Rebecca J. Hamilton (a1)
Extract

The exclusion of transnational human rights litigation from U.S. federal courts is, for most practical purposes, now complete. On April 24, 2018, the U.S. Supreme Court delivered a 5–4 ruling in Jesner v. Arab Bank, deciding that foreign corporations cannot be sued under the Alien Tort Statute (ATS).

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References
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1 28 U.S.C. § 1350.

2 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).

3 Brief for Hashemite Kingdom of Jordan as Amicus Curiae at 2, Jesner v. Arab Bank, 138 S. Ct. 1386 (No. 16–499).

4 See Stewart, David P. & Wuerth, Ingrid, Kiobel v. Royal Dutch Petroleum Co.: The Supreme Court and the Alien Tort Statute, 107 AJIL 601 (2013). See also Chandler, Anupam, Agora: Reflections on Kiobel, 107 AJIL 829 (2013).

5 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).

6 542 U.S. 692 (2004).

7 Id. at 732.

8 See International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, TIAS 13075, 2178 UNTS 197; Case Against Al Jadeed, Case No. STL-14-05/T/CJ, Judgment (Sept. 18, 2015).

9 Sosa, 542 U.S. at n. 20.

10 Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

11 Sosa, 542 U.S. at n. 20.

12 Citing Kiobel, 621 F. 3d at 177 (Leval, J., concurring in judgment).

13 It is worth emphasizing that the plurality's analysis of corporate liability under part one of Sosa was dicta and future courts are not bound by it. In an ongoing ATS case against a U.S. corporation in the Eastern District of Virginia, Judge Leonie M. Brinkema rejected the defendant's argument that Jesner prevented the suit against it from going forward. Al Shimari v. CACI Premier Tech., Inc., No. 1:08-cv-827 (LMB/JFA), 2018 U.S. Dist. LEXIS 106026, at n. 6 (E.D. Va. June 25, 2018) (“Jesner’s careful analysis and holding suggests to this Court that the Jesner Court did not intend to disturb this status quo with respect to domestic corporations.”).

14 Brief for The United States as Amici Curiae Supporting Neither Party at 25–30, Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) (No. 16–499), 2017 WL 2859943.

15 See, e.g., Tucker, Todd, Is the Supreme Court Going Too Easy on Overseas Corporations? Politico (May 8, 2018), at https://www.politico.com/agenda/story/2018/05/08/supreme-court-overseas-corporate-accountability-000659 (“In a highly globalized world, the picture emerging from America's highest court is of a playing field in which corporations enjoy plenty of rights, and the rest of us face a shrinking set of tools to hold them accountable.”).

16 Citing Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __ (2014).

17 See generally Bookman, Pamela, Litigation Isolationism, 67 Stan. L. Rev 1081 (2015).

18 See, e.g., Brief for Castro et al. as Amici Curiae Supporting Petitioners, Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) (No. 16–499), 2016 WL 6803674; Brief for Int'l Law Scholars as Amici Curiae Supporting Petition for Writ of Certiorari, Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) (No. 16–499), 2017 WL 2859943; Brief for Nuremberg Scholars as Amici Curiae Supporting Petition for Writ of Certiorari, Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) (No. 16–499), 2017 WL 2859943.

19 Brief for Nuremberg Scholars, supra note 18, at 4.

20 Brief of Ambassador David J. Scheffer, Northwestern University Pritzker School of Law as Amici Curiae Supporting Petition for Writ of Certiorari at 9–18, Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) (No. 16–499), 2017 WL 2859943.

21 See generally, Davis, Seth & Whytock, Christopher A., State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018) (arguing state courts are a promising forum for the provisions of remedies for international human rights violations). But see Parrish, Austen L., State Court International Human Rights Litigation: A Concerning Trend?, 3 U.C. Irvine L. Rev. 25, 3943 (2013) (highlighting the barriers to success at the state level).

22 Human Rights Council, Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, UN Doc. A/HRC/26/L.22/Rev.1 (June 24, 2014); see also Thielbörger, Pierre & Ackermann, Tobias, A Treaty on Enforcing Human Rights Against Business: Closing the Loophole or Getting Stuck in a Loop?, 24 Ind. J. Global Legal Stud. 43 (2017).

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  • ISSN: 0002-9300
  • EISSN: 2161-7953
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