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Some Quick Thoughts on Transnational Human Rights Litigation in American Courts After Kiobel

By: Professor Burt Neuborne [*]

The hope that the ATS would permit entrepreneurial lawyers to choreograph international human rights cases involving: (1) alien plaintiffs; (2) alien corporate defendants; and (3) acts wholly occurring abroad into an American court in an effort to take advantage of American discovery rules, Rule 23 class actions, and an independent judiciary is now history. All nine Justices in Kiobel slammed that door, which was probably a pipe dream in the first place. Chief Justice Roberts, writing for five Justices, including the maddeningly vague Justice Kennedy, ruled that the presumption against extraterritorial legislation blocked use of the ATS as a source of federal jurisdiction when neither the plaintiffs, nor the defendants, nor the operative facts had a significant link with the territorial United States. Mere corporate presence for the purposes of general jurisdiction over the defendant could not, ruled the Chief Justice, constitute the significant link to the territorial United States needed to rebut the presumption against extraterritorial legislation.

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Earlier Supreme Court Jurisprudence Shows Hope Not Lost for Those Seeking Corporate Accountability in U.S. Courts

By: Carey Shenkman[*]

Wednesday, the U.S. Supreme Court set a deeply alarming precedent in its decision in Kiobel v. Royal Dutch Petroleum, holding in substance 5-4 that the presumption against extraterritoriality defends corporations from being held accountable for human rights abuses like torture, rape, and murder committed in other countries. For years, U.S. courts were the only recourse for victims from countries with powerless, dysfunctional, or corrupt judicial systems. Their cases were a rare check on the conduct of our companies and their subsidiaries abroad.

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R.I.P. A.T.S.? How much of the Alien Tort Statute survives the Supreme Court’s Kiobel Decision?

This morning, the Supreme Court dismissed the human rights claims of a group of Nigerian nationals against Royal Dutch Petroleum (Shell) under the Alien Tort Statute (A.T.S.) in a 9-0 decision, though the justices split 5-4 as to the reasoning. For the original opinion, see: Kiobel v. Royal Dutch Petroleum Co., 569 U.S. ___ (2013)

Justice Roberts delivered the opinion of the Court on behalf of 5 justices. First, the Court held that the presumption against extraterritoriality, explained with force in Morrison v. National Australia Bank, 561 U.S. ___ (2010), applies to the statute and the federal common law cause of action under the statute. Second, the court found nothing in the statute’s language or history to rebut the presumption. Third, there are no facts to rebut the presumption in the instant case. Fourth and finally, the Court justifies its solution as preventing the ‘diplomatic strife’ that may arise from judicial interference in foreign policy, an area that is traditionally reserved to the political branches. The Court implied that even if the primary norm that created the cause of action might not cause strife, the judicial search for secondary rules (such as corporate liability) may still do so.

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Video from Arctic Symposium

NYU Law has posted video of our Oct. 22 symposium on “International Law and Environmental Protection in a Melting Arctic.”  Below is the keynote address, given by Peter Taksoe-Jensen, Danish Ambassador to the United States.  The Ambassador’s speech begins at 25:34, preceded by short introductions from Jose Alvarez and Herbert Rubin.

[youtube=http://www.youtube.com/watch?v=aNF02K9pgCQ&fs=1&hl=en_US]

See more video after the jump.

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Book Review: Cipriani’s Children’s Rights and the Minimum Age of Criminal Responsibility

This installment in our ongoing series of book reviews looks at Children’s Rights and the Minimum Age of Criminal Responsibility by Don Cipriani. Michael Gigante’s review takes a critical eye towards the arguments Cipriani advances in favor of requiring all nations to establish a minimum age of criminal responsibility.

By Michael V. Gigante

Children’s Rights and the Minimum Age of Criminal ResponsibilityIdeas about the proper role of criminal responsibility in juvenile justice tend to fall along a welfare-justice continuum. The welfare approach, prominent at the birth of the modern notion of a juvenile justice system, essentially dismissed the notions of competence and criminal responsibility for children. State authorities intervened to make benevolent decisions on behalf of children, who were portrayed as objects without liberty rights. On the other end of the continuum, the justice approach—towards which clear shifts have occurred in recent decades—places criminal responsibility and children’s alleged competence at the center of juvenile justice. Accountability, due process, and punishment are the foundations of this approach. In Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective, Don Cipriani points out the flaws of both these approaches and describes the merits of a children’s rights approach as a way to mediate between the tensions of the welfare and justice approaches.

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Book Review: Stacy’s Human Rights for the 21st Century

In the latest installment of book reviews, Nalini Gupta lauds Human Rights for the 21st Century, by Helen M. Stacy for providing a comprehensive analysis of human rights work. However, Gupta notes that Stacy risks oversimplifying the issues in her attempt to divide major critiques of the international human rights system into three categories: sovereignty, civil society, and multiculturalism.

By Nalini Gupta

In Human Rights for the 21st Century, Helen Stacy addresses the major critiques of the international human rights framework, offering suggestions on how to fill gaps in the current system in order to strengthen the framework. Stacy organizes the major critiques of the international human rights system into three categories: sovereignty, civil society, and multiculturalism. Responding to each of these critiques, she argues that the law and the courts must continue to play a critical role in the human rights system, but their role must be adjusted to adapt to the challenges posed by the current world order. Stacy’s book is a worthy read, providing a comprehensive analysis of the current challenges of the current human rights framework and offering interesting and practical proposals aimed at improving the present system.

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