More on Doe v. Unocal

I've now read the brief filed by plaintiffs in the Doe v. Unocal case in response to DOJ's amicus brief. It can be found here; MS Word file; link via a commenter here.)

I'm still leaning in favor of DOJ's interpretation of the Alien Tort Claims Act, but if I had to make a final decision, I would need to read 1) all other briefs filed in the case; 2) all the relevant precedents; and 3) every major law review article ever written on the topic. And as I'm not a judicial clerk with the responsibility for advising a judge on this case, I'm not going to undertake that level of preparation.

Thus, you should still take whatever I say with a grain of salt. That said, since I analyzed DOJ's amicus brief, I thought I should probably do the same for the plaintiffs' brief here:

• Argument 1: The Justice Department has no special expertise in the interpretation of the ATCA. Plaintiffs' Br. at 5-6.
  
  Comment. True. But DOJ wasn't asking for Chevron deference here.
  
  
• Argument 2: DOJ's position is at odds with the "plain language and history of the ATCA." In 1795, the Attorney General opined that foreigners could sue Americans under the ATCA for aiding a foreign military. And in another 1795 case, a court upheld a claim based on a treaty. In fact, the Framers regarded international law as part of the common law.
  
  Moreover, DOJ's interpretation would have made the ATCA meaningless when it was enacted, because Congress never passed any special implementing legislation. Plaintiff's Br. at 6-16.
  
  Comment: These are the strongest arguments that the Plaintiff has. While the ATCA is unquestionably jurisdictional in function, it clearly contemplates that aliens will be able to file tort lawsuits based on the "law of nations" and/or treaties. The real questions, then, are 1) what counts as the "law of nations"; 2) how does a court determine the content of such law; 3) does the "law of nations" have to provide a cause of action or not; 4) if not, how can the law here be consistent with the law on causes of action everywhere else; and 5) if no specific cause of action is necessary, what is the limiting principle by which courts will prevent anyone from suing for anything.
  
  
• Argument 3: DOJ is in error when it argues that the ATCA allows suits only where there is a self-executing treaty ratified by Congress. The plain text of the ATCA allows suits where there was a violation of the "law of nations" or a "treaty." These are two different things. Plaintiffs have a right to file suits based on international "customary norms."
  
  Comment: I agree with the argument that the "law of nations" text has to mean something. But the references to "customary norms" seem awfully vague and manipulable, which makes me nervous. I'd have to know a lot more information than the plaintiffs provide before I would agree that anyone can bring a lawsuit based on something as tenuous as a "customary norm."
  
  Also in this section of the brief, the plaintiffs complain that DOJ is "asking this Court to alter twenty-three years of consistent jurisprudence under the ATCA . . . ." This may be so, but the very reference to 23 years catches my eye, and not in a good way. The ATCA has existed since 1789. If the plaintiffs' interpretation has held sway for a mere 23 years out of 214, that is one indicator that it might be off-base.
  
  
• Argument 4: DOJ errs in claiming that the ATCA applies only to torts committed in United States territory. The text has no such limitation. Plaintiffs' Br. at 24-29.
  
  Comment: This argument may be right.
  
  
• Argument 5: Taking a broad view of adjudication under the ATCA won't interfere with the USA's foreign policy agenda. Judges can decide on the risk of interference on a case-by-case basis. Plaintiffs' Br. at 29-31.
  
  Comment: While it may be correct that ATCA suits won't automatically interfere with foreign policy, I'm not nearly so sanguine about plaintiffs' interpretation on this front. As DOJ's brief observed, many people might try to use the ATCA -- and have already done so -- to file lawsuits over the handling of the "war on terror."

In sum, while I still lean towards DOJ's position, I'm less convinced than I was before. It seems plain that the ATCA does allow suits based on the "law of nations," but even after reading both briefs I have no idea what that term really means and where one would go to find causes of action in the "law of nations."