[Opinio Juris Note: Thanks to everyone, especially David Moore, for participating in the online workshop this week. Here is David's last post and the last contribution to what has been a very interesting and useful workshop.]

Marty is, of course, right that the issue before the Court in Sosa was not whether all CIL qualifies as federal common law or whether the creation of CIL-based common law requires positive authorization. The issue was whether the ATS supports common law claims based on CIL. That does not mean, however, that Sosa did not address the modern position versus revisionist debate. A court’s approach to resolving the issue presented is a part of its holding just as the ultimate resolution of the issue is. And the approach the Sosa Court took in determining the import of the ATS is inconsistent with the modern position. Among other things, the Court’s pervasive search for and adherence to congressional intent would have been unnecessary if the modern position were correct, as would the Court’s efforts to conform to narrow, post-Erie notions of federal common law authority. The Court’s references to Sabbatino are not to the contrary–a citation to Sabbatino is not, as some would suggest, a cite to the modern position. Indeed, as Marty concedes in parenthetical, the Court explained (in one reference to Sabbatino) that despite Sabbatino’s creation of a common law doctrine (based on constitutional separation of powers concerns and applied to avoid application of international law), the general rule is to look for legislative authorization before creating common law. Sosa applied that general rule in the CIL context. In two other citations, the Court invoked Sabbatino to conclude that developments since the enactment of the ATS did not preclude Congress from authorizing courts to create CIL-based common law. The source of the courts’ common law authority, however, remained congressional intent. Even in its references to Sabbatino, the Court says more about the modern position versus revisionist debate than Marty lets on.

Peter acknowledges as much, but resurrects Beth’s suggestion that the debate has been about how much CIL qualifies as domestic law, that revisionism saw little or no room for CIL, and that an acknowledgement that CIL may play a robust domestic role post-Sosa marks a retreat for revisionism. Revisionist writings have not focused on how much CIL qualifies as domestic law, because revisionism is about how, not how much, CIL might become common law. Now that the Court has lent its weight to the revisionist view, it makes sense to survey what that view means for CIL’s actual role in domestic law. The change in focus results from a change in context, more than content. I suspect that Peter’s point about tone is more about context than content as well. Curt and Jack’s 1997 piece was, as Peter notes, pathbreaking. It interrupted a largely uncritical consensus in the legal academy. Having spurred serious debate and now garnered support from the Supreme Court, revisionist scholarship might be expected to take a different tone (if indeed it has), not so much as a matter of content, but as a matter of context.

As this online workshop comes to a close, I will conclude with one forward-looking thought. To my mind, Sosa does more than advance the revisionist position. The factors Sosa imposed to guide judicial incorporation of CIL (intent of the political branches, specificity, broad acceptance, practical consequences, foreign relations effect, and alternative means of enforcement) bear an unacknowledged but striking resemblance to the considerations that have guided self-execution analysis in the treaty context. The similarity suggests the emergence of a uniform doctrine governing the status of both sources of international law in federal courts. I have developed this observation in a separate piece (An Emerging Uniformity for International Law, 75 Geo. Wash. L. Rev. (forthcoming 2006)), an earlier draft of which is available here for anyone who cares to take a sneak peek.

This has been a valuable exchange. Many thanks to Peter, Marty, Roger, Beth and Julian for their insightful comments and to Opinio Juris for hosting this workshop.

[Opinio Juris note: We are delighted that Martin Flaherty, Leitner Family Professor of Law at Fordham Law School and a leading scholar in the fields of human rights and foreign relations law, has sent along the following thoughts on the Bradley-Goldsmith-Moore article.]

This is a rich and stimulating exchange, and I thank all concerned for their contributions. My general reaction is to register a degree of puzzlement with regard first, to the question of whether Federal courts may fashion Federal common law derived from CIL in the absence of authorization from the so-called political branches; and second, to agree strongly with Beth Stephens about Sosa ratifying most post-Filartiga ATS jurisprudence.

First, I believe that Sosa simply leaves open the question about the status of CIL absent authorization. To point out the obvious, that question wasn’t before the Court, nor was it a topic of sustained discussion in dicta. Thus we are left with making inferences from limited evidence. On one hand, Sosa indeed adopts sub silentio most of Curt and Jack’s prudential concerns, which themselves relate to democratic approval and/or foreign relations concerns. It would follow that such concerns would be even greater in the absence of a statute such as the ATS. To infer further that this means rejection of the modern position strikes me as over-arguing. On the other hand, the majority’s handful of reference’s to Sabbatino indicate both a) that the courts may make Federal common law on international matters post-Erie [noting the Court has assumed the competence to fashion judicial rules of decision of particular importance in foreign affairs, though noting a general practice of looking for authorization, slip.op. at 32], and might even still apply international law directly [n. 18]. Fairly read, I read Sosa leaving the status of CIL without more open, and find unconvincing the arguments that it in effect rejects the modern position.

Second, Sosa’s standard as to what types of CIL claims would pass muster under the ATS features the rhetoric of extreme prudence with the realty of ratifying the post-Filartiga litigation that had developed to that point. The Court cashes out the prudential concerns with two standards: general assent (of “civilized” nations) and specificity of the claim. The first appears to be a conflation of standard CIL analysis, unless the Court unwittingly meant to jettison the opinio juris inquiry. The second appears home-grown, though as Beth Stephens notes, articulated in Filartiga itself. It is hard to see how even the specificity requirement would undermine such jus cogens claims such as torture, extra-judicial killing, prolonged arbitrary arrest and detention, which have been the core of ATS litigation. I readily admit that the standard may present real difficulties in other regards, e.g. corporate complicity. That is not to say the standard inevitably results in rejecting UNOCAL claims, or that it should. It is simply to argue that the claims that have been established to date appear comparatively safe.

The perception that Justice Scalia views the majority’s approach differently than our Article does results, at least in part, from the somewhat complicated relation between two issues that I raised in my initial post: (a) the post-Erie status of CIL in the absence of political branch authorization, and (b) the import of the Alien Tort Statute, in particular whether the ATS authorizes the application of CIL as federal common law. In answering the latter question, all nine justices relied, not on some notion that CIL is, wholesale, federal common law, but on political branch authorization—the intent of the First Congress in enacting the ATS. The justices likewise agreed on the nature of that intent–that Congress wished to provide jurisdiction to support a limited set of general law claims based on the law of nations. As our Article reports, then, Justice Scalia and the majority see the same need for political branch authorization, unanimously endorsing (for this and other reasons) the revisionist view on issue a.

Justice Scalia’s disagreement with the majority lies not with how to determine whether CIL may be applied as federal common law in ATS cases (again, issue a), but on whether the ATS authorizes the application of CIL as federal common law (issue b). As Roger indicates, Justice Scalia did not believe that the First Congress’s intent could be translated into a post-Erie world in which law of nations claims would be federal, rather than general, common law creating arising under jurisdiction, preempting state law, and potentially binding the Executive. The majority disagreed (in part based on the intent of modern Congresses), finding it possible to effect the First Congress’s intent in a post-Erie environment. Our Article, which is descriptive rather than normative, seeks neither to defend nor critique the majority’s conclusion that the intent behind the ATS provides authorization for a limited set of post-Erie common law claims derived from CIL. As a result, while Justice Scalia vociferously opposes the majority’s translation rationale, our Article reports the rationale and the resulting resolution of issue b, but remains silent on the rationale’s merits. That is where our divergence with Justice Scalia’s concurrence lies.

Thanks to Beth and Julian for their insightful comments. Let me respond to a few of them. Beth suggests that the “modern position” and “revisionist” categories are exaggerated and simplistic, apparently because she perceives that no CIL qualifies as federal common law under the revisionist view while all CIL qualifies as common law under the modern position view. Some adherents to the modern position, she asserts, stake out the “middle ground,” not captured by these categories, in which CIL is a source of federal common law in appropriate cases. An “as appropriate” approach provides no theory of how or why CIL becomes federal common law, as the other approaches do, and so would not seem to qualify as a separate category (read theory), or at least as one that could support meaningful debate. More fundamentally, Beth’s argument misperceives the nature of the modern position versus revisionist debate. The debate is not about how much CIL qualifies as common law. If it were, discussing the debate in all or nothing terms would be exaggerated and simplistic. The debate is about how CIL qualifies as federal common law. The modern position asserts that CIL is, by historical pedigree or precedent, federal common law. The revisionist view (and Sosa) maintains that CIL becomes federal common law consistent with the requirements and limitations of post-Erie common law. There are, as Beth asserts, a range of situations (many detailed in the Article) in which these requirements and limitations are met and in which CIL is applicable as federal common law. This “middle ground,” however, emerges consistent with the revisionist explanation of how CIL becomes federal law. Thus, at least the middle ground Beth adopts fits comfortably within the categories on which the Article focuses. (Incidentally, the Article does discuss an intermediate position that would treat CIL as a type of general law post-Erie. Sosa’s application of a traditional conception of post-Erie common law to CIL effectively undermines the intermediate position, however.)

On this question of historical pedigree, Julian suggests that Sosa did not clearly find that CIL was general common law pre-Erie and therefore left room for courts to treat CIL as “a special kind of ‘common law.’” While the Court did not explicitly state that CIL was general common law, it certainly indicated that it believed as much. For example, in discussing the law of nations’ pre-Erie status, the Court invoked two Holmesian descriptions of the general common law. Similarly, the Court stated that the law of nations included the law merchant which was unquestionably part of the general common law. Even if one could ignore this and other evidence that the Court viewed CIL as general law, the Court’s application of a very traditional conception of post-Erie common law to contemporary CIL leaves no room for concluding that CIL should now be treated specially.

Under the traditional conception the Court applied, federal courts may develop common law based on CIL pursuant to congressional authorization. That authorization, contrary to what Julian suggests, often must be more than a jurisdictional grant. The ATS was a unique situation in which the jurisdictional grant was enacted based on certain expectations about the common law that the Court decided to translate into a post-Erie world. Nor is the authorization requirement a thin line. That line prevents judicial incorporation of CIL at will. The line is crossed when both houses of Congress and the President agree to cross it. That line is the same line that separates norms and aspirations from law. As a result, it is not surprising that, as a matter of domestic law, CIL might bind the Executive once that line is crossed, but not before.

Before I conclude, let me respond to one other comment–Beth’s suggestion that one can conclude that Sosa rejected much of Filartiga and its progeny only by misinterpreting those cases. I would suggest that one can evade Sosa’s rejection of much of the pre-Sosa case law only by ignoring those cases or the parts of those cases that were inconsistent with Sosa. That is, Beth seems to define Filartiga and its progeny only to include those cases that took a “remarkably cautious” approach to the Alien Tort Statute. While it is true that Sosa did not reject all, or perhaps even most, of what had emanated from Filartiga, the Court’s adoption of language similar to that invoked by prior courts does not mean the Court endorsed those courts’ application of that language. Indeed, the Court made clear that pre-Sosa cases had not demonstrated the caution that Sosa requires. As but one example, Filartiga and its progeny placed significant weight on the ICCPR, Universal Declaration, and Restatement in identifying actionable norms of CIL. The Court in Sosa, by contrast, stated that the ICCPR and Universal Declaration had “little utility” under Sosa’s demanding standards, and the Court found that “[e]ven the Restatement’s [norms] are only the beginning of the enquiry.”

Beth and Julian raise other interesting issues—the scope of corporate aiding and abetting liability under the ATS and whether CIL binds the Executive even in the absence of political branch incorporation. These are serious issues raised by scholars whom I respect. But to maintain the reader’s respect after so much rambling on (and since these issues were not major focuses of the Article), I will not address them here.

[Opinio Juris note: We are very pleased that Professor Beth Stephens of the Rutgers University School of Law at Camden, a leading scholar of the Alien Tort Statute, has offered to provide a reaction to the Bradley-Goldsmith-Moore Article and we post her thoughts in full below]

Ten years after publication of their first attack on the “modern position,” Professors Bradley and Goldsmith, now joined by Professor Moore, continue to undermine the strength of their argument by opposing exaggerated (and simplistic) categories – “the modern position” and the “revisionists.” Elsewhere, they acknowledge that the group they lump together as the modernists includes a range of views about the modern import of customary international law. One such view is amply supported by the Sosa decision: customary international law is a source of federal common law to be applied in appropriate cases. That is not to say that it is incorporated in toto into federal common law. But it does signify that it can be relied upon by the federal courts in a range of situations (some of which they identify in their article), that it is federal (not state) law, and that disputes about its interpretation raise federal questions.

That said, I’m more interested at the moment in their interpretation of the impact of Sosa on the ongoing Alien Tort Statute litigation. Two points here: First, they conclude that Sosa is a rejection of much of Filartiga and its progeny only by misinterpreting those cases. The Filartiga line of cases was a remarkably cautious set of decisions. The standard put forth by Sosa – claims must be “accepted by the civilized world” and “defined with…specificity” – comes directly from Filartiga, which required that claims “command the ‘general assent of civilized nations’” and be capable of “clear and unambiguous” definition. The cases use virtually identical language because both draw directly from Paquete Habana. In practice, application of this standard pre-Sosa led to the dismissal of most ATS claims, many of them for failure to state an international law violation that met its exacting requirements. But the standard also permitted a handful of important cases to proceed against defendants accused of truly egregious human rights abuses.

Second, their discussion of the application of Sosa to the current debate about corporate aiding and abetting liability is surprisingly thin. Step back for a minute. In what legal system do we hold liable the person who shoots the gun, but not the person who buys it and hands it to him, loaded and ready to shoot? U.S. and international courts and commentators have recognized this consistently, from the 18th century (see Blackstone’s discussion of accessories to piracy, for one example) to the 21st century (the administration recognized this in the context of a civil statute imposing liability for terrorist acts, urging the courts to interpret the statute to include aiding and abetting liability). Whether viewed as a matter of federal common law or widely accepted international law, complicity liability is surely part of the “tort” encompassed by the ATS. Finally, some disagreement about the standard to define aiding and abetting liability is not fatal: The paradigm case relied upon by Sosa to define piracy, U.S. v. Smith, recognized “a diversity of definitions,” but held that agreement about the core of the definition – “robbery, or forcible depredations upon the sea, animo furandi” – was sufficient.