The Big Seven (Plus One) Supreme Court Cases: Part 3

While I am going to do my best to stick to my original plan for introducing the October 2017 Supreme Court term's major cases, there is just so much going on that some additions and diversions (including not always doing two cases at a time) will be inevitable.  One addition to the blog, starting with this post, is "Cases on My Radar", which will be cases I have learned about that are (1) important, (2) interesting, (3) likely to make it to the Supreme Court, or (4) odd (in a good way).  And by the way, if you see a case that you want to be on this blog's radar, let me know in the "Post a Comment" section.

October 11: Jesner v. Arab Bank, PLC

The Alien Tort Statute (ATS) grants jurisdiction to federal district courts to hear cases "of all causes where an alien sues for a tort only, in violation of a law of nations or of a treaty of the United Staes".  A good summary from LLI:

"According to Law Professor George Fletcher, “the kind of torts that qualify as violations of the law of nations are widely condemned, egregious acts of wrongdoing.” The international legal norms that will qualify as a cause of action under ATS must be “specific, universal, and obligatory.” Sosa [v. Alvarez-Machain, 542 U.S. 692 (2004)] at 732. For example, it has been held that genocide, war crimes, and crimes against humanity (and torture contributing to these crimes) are paradigmatic violations of the law of nations under ATS, even when committed by an individual divorced from state action".   

The plaintiffs were victims of terrorist attacks by Palestinian terrorist organizations in Israel, Gaza and the West Bank which they claim Arab Bank helped to finance.  Obviously, the bank is a corporation.  Can corporations be sued for human rights violations under the ATS?  That is the issue the Court has to decide.

The Sosa case made it clear that foreign governments cannot be sued under the ATS (under the Foreign Sovereign Immunity Act), and it is well established that foreign persons can be, but what about corporations?  Plaintiffs argue that corporations have always been held liable for their torts, that finding that the ATS can be used against corporations only helps realize its goal of providing adequate remedies against these sorts of acts, and international law is not where to look for the answer: the Court should look to state and federal causes of action (that is, what basis do you have to sue) and foreign law which all point to holding a corporation liable.

Arab Bank relies on Kiobel v. Royal Dutch Petroleum, a Supreme Court case that held that the ATS only applies to universal norms of international law, which do not impose obligations on corporations.  International law only imposes obligations on states and individuals. They argue that even at Nuremberg the Allies did not prosecute I. G. Farben, the corporation that made the chemical used in the Nazi gas chambers but chose instead to prosecute the individuals who led it, and international criminal tribunals since Nuremberg have declined jurisdiction over corporations.  (The United States filed an amicus curiae ("friend of the court") brief arguing for corporate liability, keeping with the former administration's position).

In today's global environment, where international law norms seem to be violated all the time, who you can sue and where are (unfortunately) very important questions.  A sweeping holding that corporations can never be sued under the ATS is less likely than a very narrow construction of the statute.

Cases on My Radar

Silberberg v. Board of Elections/Rideout v. Gardner

You just voted! Congratulations on doing your civic duty.  Maybe you want to take a selfie of your ballot to show your friends.  No problem, right?  It is in the State of New York.

The federal court in Silberberg upheld a New York state law that bars photographing and displaying your marked ballot against a First Amendment challenge.  As reported in Election Law Blog

"In a careful 41-page opinion in Silberberg v. Board of Elections, a federal district court in New York has upheld against First Amendment challenge a New York law that bars photographing and displaying one’s marked ballot. The court held that the state’s interest in preventing vote buying and voter coercion were compelling, and that the law was narrowly tailored to meet this compelling interest. The Court relied heavily on the Supreme Court case of Burson v. Freeman, upholding electioneering-free zones around polling places.

[From the court's opinion] For reasons to be explained, the statute as applied to ballot selfies survives strict scrutiny. The State of New York has a compelling interest in preventing vote buying and voter coercion. The State’s interest in the integrity of its elections is paramount. The law is also narrowly tailored, for a law prohibiting the display a marked ballot only for the purpose of vote buying or coercion would be ineffective....The City Board’s policy prohibiting photography is not a content-based restriction and is not in tension with the First Amendment. This policy is narrowly tailored to address significant state interests, such as avoiding longer wait times at the polls. Narrower restrictions are unlikely to be effective". [pp. 1-2]

This case will likely be appealed to the Second Circuit, and if affirmed, it would create a conflict with the First Circuit’s opinion in Rideout v. Gardner striking down New Hampshire’s ban on ballot selfies under the First Amendment. This case could end up at the Supreme Court."

Indeed it could, and that along with the First Amendment issues and its relation to technology is why it's "on my radar".


  1. The Supreme Court has been slowly expanding the rights of corporations to include a wider swathe of individual rights and liberties. It will be interesting to see whether they adopt this 'pass-through' reasoning and apply the same expansiveness to corporate accountability.

    1. That's a great point Patti. If corporations are more like real (as opposed to legal) persons (I'm thinking Citizens United) should they not be held liable for torts? Given this SCOTUS, however, I doubt it. I think one of their arguments would be the Citizens United was about "money as speech", not the status of corporations. Also in the Jesner case I think they will sidestep the big issue and decide on the source of law or the extraterritoriality doctrine. By the way, the ACLU was not on the side of those opposed to Citizens United; it has been an issue of contention within the ACLU then and now. National ACLU felt that it would be a restriction on speech. Since I do not see money as speech/speech as money, I disagree with that approach.


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