Ed. Note: This article is the latest in our series on the U.S. Supreme Court case Jesner v. Arab Bank, a case that is slated to resolve the question of whether corporations can be sued under international law for human rights violations and terrorism. Oral arguments were held October 11th.

Further to our previous coverage of the oral arguments (transcript is here) in Jesner v. Arab Bank (see Bill Dodge’s terrific contribution followed by Ed Swaine’s elaboration), below I summarize, Justice-by-Justice, some of the key issues raised by Supreme Court and the responses of the parties’ lawyers and the United States government as amicus curiae.

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Chief Justice John Roberts wanted to know whether the ATS was a unique remedy internationally. This question gave plaintiffs’ counsel Jeff Fisher of Stanford Law an opportunity to explain the plaintiffs’ position, which is that international law contains substantive rules, but leaves many details of its enforcement to individual states based upon the particularities of their diverse legal cultures and frameworks. Fisher pointed to the comparative scholars brief for examples of the ways in which different domestic systems have dealt with corporate breaches of international law.  He conceded that the ATS is a unique feature of U.S. federalism and reflects a desire of the founders to keep international law cases out of state courts, which are courts of general jurisdiction.

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Justice Samuel Alito focused in on the norm-identification process long established by Sosa v. Alvarez-Machain, which requires courts to consider whether the plaintiff has alleged an established rule of international law. In what he described as step 2 of this analysis, this inquiry inevitably involves “an element of judgment about the practical consequences of making that cause available to litigants in the federal courts,” including the international repercussions of allowing the suit. Fisher agreed, but also pointed to a number of other doctrines available to deal with these contingencies, including extraterritoriality, foreign non-conveniens, political question, comity, etc. He argued that there is a mismatch between these concerns and the categorical rule of corporate immunity sought by defendants.

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Justice Neil Gorsuch was quite fixated on a 2011 law review article suggesting that the ATS was drafted in order to address situations in which the defendant hails from the United States (Bill Dodge has refuted these arguments here).  The theory is that the founders wanted to avoid giving just cause for war against the United States. Putting aside the fact that nothing in the text of the Statute suggests this limitation, Fisher countered that what little history we do have on the ATS belies this theory. Rather, extensive historical research has confirmed that the 1784 Marbois-Longchamps affair, which involved two foreigners, inspired the ATS.  In any case, Fisher noted that these issues were hashed out in Sosa and were definitively rejected, and all the recent cases before the Court involve aliens on both sides. At one point, Justice Sotomayor interjected to remind her colleague that the ATS clearly would have applied to piracy, which would not fit this revisionist paradigm or raise any foreign policy concerns.  (So odd was this this line of questioning that one press account described it as “Gorsuch’s strange detour”).

Justice Gorsuch suggested that cases involving ambassadors could be dealt with under the specific ambassadors clause of the Constitution.  Or, they could be dealt with under federal question jurisdiction (§1331). Fisher noted, however, that one function of the ATS is to direct such cases to a federal forum.

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Justice Elena Kagan also pursued this line of argument and wanted to know if it would be better to deal with these cases through the creation and enforcement of financial regulations rather than through private litigation. Fisher noted that the allegations here are not about simple negligent oversight; rather, the Bank was affirmatively funding acts of terrorism against U.S. citizens and the citizens of our allies.  These allegations were proven in the ATA wing of the case and resulted in a significant money damage award for the plaintiffs.

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Justice Anthony Kennedy stayed focused on the core question: does Sosa require plaintiffs to show that international law affirmatively recognizes a cause of action against corporations for international law violations? He insisted that this part of the conduct-regulating norm (as opposed to an ancillary or derivative inquiry addressed to modes of enforcement) since it would dictate standards of behavior to corporations. Fisher disagreed, indicating that the question of who could be sued and under what theory are elements of enforcement, but not core to identifying the scope of the norm itself. He took this occasion to remind the Court that this has been the consistent position of the U.S. government over two administrations.

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A couple of small issues also made cameo appearances. Justice Sotomayor asked about the Court’s new rules governing personal jurisdiction over corporations under Daimler Chrysler AG v. Bauman. Fisher noted that Daimler covers cases involving the exercise of general jurisdiction over corporations and requires them to be sued at the principal place of business or headquarters. The case at bar, by contrast, is a specific jurisdiction case involving actions taken in New York, the forum state.

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