Student Features

I. INTRODUCTION*

Through no fault of its own, the Supreme Court recently missed a chance to clarify important questions about the role of international law in U.S. courts. In American Isuzu Motors v. Ntsebeza, an appeal of a split decision from the Second Circuit, the Court could have ended the confusion surrounding the scope of “aiding and abetting” liability under the Alien Tort Statute (“ATS”), a law that allows aliens to sue in U.S. federal courts for violations of international law. The Supreme Court’s ruling in the case could have also provided general guidance on how courts should apply customary international law in the United States. Unfortunately, the Court lacked the quorum necessary to hear the case, leaving the issue unresolved.

This question is particularly significant because modern customary international law now touches many areas of policy that were once the sole domain of domestic politics. As we enter a period in which international law plays an increasing role in our domestic legal system, we must ensure that we apply international law in the United States in a way that respects the federal constitutional structure. Incorporation of modern customary international law into the American legal system – through vehicles like the Alien Tort Statute – should occur in a way that meaningfully reflects the functional design of the U.S. Constitution.

This brief article suggests that because customary international law formation has come to resemble, in certain respects, global administrative rulemaking, the application of customary international law in the U.S. raises “non-delegation” concerns about Congress delegating its lawmaking authority away to international bodies. Administrative law doctrine, therefore, may offer a helpful way of thinking about this challenge.

First, this article surveys the recent debate surrounding aiding and abetting liability under the Alien Tort Statute, with a focus on the 2008 case the Supreme Court was unable to hear, American Isuzu Motors v. Ntsebeza (the “Apartheid Case”). This article then examines how the customary international law claims raised in the case reflect a modern theory of customary international law formation that bears certain similarities to domestic administrative lawmaking. Finally, it argues that constitutional concerns about separation of powers suggest that clear legislative authorization should be required before courts can apply a particular area of international law domestically – and that, absent such authorization, liability should not be extended by an aiding and abetting theory.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

I. INTRODUCTION*

U.S. courts face a difficult challenge when considering whether to hear a case brought by foreign plaintiffs for alleged tort injuries that have occurred abroad. In opposing motions to dismiss based on forum non conveniens, foreign  plaintiffs have argued that a dismissal would effectively leave them without a remedy. They reason that the courts of countries where the tort occurred are so grossly and explicitly biased against the defendants, typically U.S.  corporations, that a foreign judgment would be unenforceable in the U.S. courts. This is potentially the case with Law 364 in Nicaragua, which establishes enormous advantages for local plaintiffs—such as establishing an irrefutable presumption of causation based on minimal standards of proof—as well as disadvantages for the foreign defendants—such as requiring them to deposit large bonds with the court just to gain access to the proceedings.

Foreign plaintiffs in the United States hope to either force U.S.-based corporate defendants to litigate cases in the U.S. or bootstrap these bad foreign laws into judgments that are enforceable in U.S. courts. Indeed, it is no surprise that foreign plaintiffs, with the support of their U.S. lawyers, appear to be behind the efforts to enact some of these laws. The strategy is clear and cunning—foreign laws that discriminate against U.S. defendants (hereinafter “discriminatory foreign laws” or “DFLs”) can be the predicate for U.S. jurisdiction for foreign plaintiffs.

A variation on this theme is DFLs that render local courts unavailable to plaintiffs once a case has been merely filed in the United States. Here, the message to the U.S. court is that dismissal of the case will mean plaintiff has no forum at home. In the case of Nicaragua, the foreign plaintiffs often do not even have to make these arguments. They can rely on the defendants not asking for a dismissal for fear that such dismissal—based on forum non conveniens—will lead to an unfair foreign judgment that might later be enforced in the United States. It is too risky to take that chance.

This paper argues that U.S. courts should dismiss cases premised on DFLs under forum non conveniens, while continuing to refuse to enforce any judgments obtained under such laws. The long-standing position of U.S. law has been that the parameters of dispute resolution—level of damages, choice of law, types of proceedings—should take place in the jurisdiction where the dispute arose. This paper further suggests that a federal statute is necessary to achieve this result.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

I. INTRODUCTION*

The most prominent example of the economic impact that competitive federalism has had in the United States is without question the State of Delaware. Delaware, the third smallest state of the country, is the leading legal residence for both U.S. and international corporations. Over 50% of all publicly traded companies in the United States, including 60% of the Fortune 500 companies, have chosen Delaware as their place of incorporation. As a result, Delaware represents an important potential model for furthering competition among member states of the European Union, a model that gains more practical relevance with every decision of the European Court of Justice (ECJ) regarding freedom of establishment and freedom of movement. This article does not directly discuss the potential advantages of a European market for incorporations. Rather it seeks to demonstrate that a national market for incorporations can be established in Germany, the EU’s largest economy, thereby adding the sixteen German federal states as individual participants to a (future) European market and creating opportunities for less prosperous German states to improve their financial situation through an attractive regulatory framework.

In 2002, the German Federal Constitutional Court’s decision in the Altenpflegeurteil case enabled states for the first time to regulate corporate law so long as the constitution’s “necessity clause” did not apply. The necessity clause, derived from Art. 72 II of the German Constitution (GG), applies if federal legislation is necessary either to ensure the equality of living conditions throughout Germany or to safeguard the economic and legal unity of the nation. However, even if the 16 states passed different legislation regulating corporate charters, it would neither affect the living conditions of the German people to the extent that they become unequal nor represent a threat to the legal or economic unity of the country. Therefore, the necessity clause is not applicable in this case, and federal legislative authority regarding corporate charters is unnecessary. Even though the states have not yet taken advantage of their ability to pass corporate law, the Altenpflegegesetz decision provides the opportunity for German states to establish a competitive market for incorporations.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.