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Full-Text Articles in Law
Immigration Separation Of Powers And The President's Power To Preempt, Catherine Y. Kim
Immigration Separation Of Powers And The President's Power To Preempt, Catherine Y. Kim
Notre Dame Law Review
This Article explores the unique separation of powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt state law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting state laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to administrative decisions. At the same time, however, it has imposed significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, the Court departed from these existing …
Labor In Faith: A Comparative Analysis Of Hosanna-Tabor V. Eeoc Through The European Court Of Human Rights' Religious Employer Jurisprudence, Francesca M. Genova
Labor In Faith: A Comparative Analysis Of Hosanna-Tabor V. Eeoc Through The European Court Of Human Rights' Religious Employer Jurisprudence, Francesca M. Genova
Notre Dame Law Review
This Note uses the European Court of Human Rights’ framework to analyze the Supreme Court’s decision in Hosanna-Tabor v. Equal Employment Opportunity Commission, which recognizes a “ministerial exception” for religious organizations as a defense to certain employment claims. It argues that the unanimous Supreme Court in Hosanna-Tabor examines factors similar to those of its European counterpart, but protects religious liberties more robustly by avoiding some of the European Court’s preoccupations. Yet, the European Court’s assessment anticipates the difficulties of applying the “ministerial exception” in future cases.
The Curious History Of The Alien Tort Statute, Beth Stephens
The Curious History Of The Alien Tort Statute, Beth Stephens
Notre Dame Law Review
The Alien Tort Statute (ATS) has provoked extensive, passionate debate, despite the relatively modest practical import of ATS cases. The outsized controversy surrounding the statute reflects its role in a longstanding struggle for control over the interpretation and enforcement of international law, and over whether that law will serve as a meaningful restraint on the actions of states, state officials, and corporations. As a result, the history of the ATS offers a unique window into the modern history of international law.
Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, Doug Cassel
Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, Doug Cassel
Notre Dame Law Review
In this author’s view, the concurring Justices are correct in allowing ATS suits against Americans for foreign torts. And contrary to narrow readings by some lower courts, even the majority’s rationale allows space for ATS causes of action for torts committed by Americans overseas. Kiobel was a suit by foreign plaintiffs, against foreign defendants, for foreign conduct. In that “foreign-cubed” case, the limited American jurisdictional interests at stake—mainly to afford redress for heinous international torts—were not enough to persuade the majority to overcome its presumption against extraterritorial application. Nor were they enough to convince the four Justices concurring in the …
Resisting Rulemaking: Challenging The Montana Settlement's Title Ix Sexual Harassment Blueprint, Katie Jo Baumgardner
Resisting Rulemaking: Challenging The Montana Settlement's Title Ix Sexual Harassment Blueprint, Katie Jo Baumgardner
Notre Dame Law Review
Every university and college across the nation—with the exception of three—accepts federal financial assistance. Consequently, in the world of higher education, the impact of administrative regulation and compliance that accompanies federal funding cannot be overstated. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs or activities operated by recipients of federal financial assistance. The text of Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program …
Alien Tort Litigation: The Road Not Taken, William S. Dodge
Alien Tort Litigation: The Road Not Taken, William S. Dodge
Notre Dame Law Review
When the Second Circuit decided in Filartiga v. Pena-Irala that the Alien Tort Statute (ATS) provided a federal forum for international human rights claims, no one would have predicted that thirty-three years later in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court would use the presumption against extraterritoriality to limit those claims. This Essay recounts some of the doctrinal developments in alien tort litigation during the intervening thirty-three years.
The Future Of Human Rights Litigation After Kiobel, Roger P. Alford
The Future Of Human Rights Litigation After Kiobel, Roger P. Alford
Notre Dame Law Review
This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. As others have argued in this issue, that premise may not be correct. Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief.
Kiobel Surprise: Unexpected By Scholars But Consistent With International Trends, Eugene Kontorovich
Kiobel Surprise: Unexpected By Scholars But Consistent With International Trends, Eugene Kontorovich
Notre Dame Law Review
A primary function of legal scholarship is to incubate ideas to inform the bench and bar. Yet several Supreme Court Justices have recently spoken out publicly about what they consider the growing irrelevance of academic legal scholarship (though empirical findings suggest the continued utility of law reviews to judges). The legal academy sometimes entirely misses what turn out to be major and decisive legal issues in prominent areas, not recognizing them at an early stage and dismissing their importance later on. For example, the great majority of professors dismissed the notion that the Patient Protection and Affordable Care Act (Obamacare) …
The Three Lives Of The Alien Tort Statute: The Evolving Role Of The Judiciary In U.S. Foreign Relations, Thomas H. Lee
The Three Lives Of The Alien Tort Statute: The Evolving Role Of The Judiciary In U.S. Foreign Relations, Thomas H. Lee
Notre Dame Law Review
This Article explains how the Alien Tort Statute (ATS) began in the late eighteenth century as a national security statute that the First Congress and early federal district judges saw as a way to afford damages remedies to British merchants, creditors, and other subjects whose persons or property were injured under circumstances in which treaties or the law of nations assigned responsibility to the United States. Torts committed within the United States by private American citizens were the most likely such circumstances. The ultimate aims of the statute were to avoid renewed war with Great Britain and the other European …
The Ats Cause Of Action Is Sui Generis, William R. Casto
The Ats Cause Of Action Is Sui Generis, William R. Casto
Notre Dame Law Review
In Kiobel v. Royal Dutch Petroleum Co., the Court considered the extraterritorial reach of the tort action for violations of customary international law. Kiobel was a “foreign-cubed” case in which a foreign plaintiff sued a foreign defendant for damages arising from conduct in a foreign country. The Justices wrote four different opinions, but they were unanimous in refusing to create a federal common law tort remedy in a foreign-cubed case. At least they were unanimous in holding that a remedy is not available in a case like Kiobel. Some, including the present author, are disappointed in the Court’s decision. But …
Things We Do With Presumptions: Reflections On Kiobel V. Royal Dutch Petroleum, Carlos M. Vazquez
Things We Do With Presumptions: Reflections On Kiobel V. Royal Dutch Petroleum, Carlos M. Vazquez
Notre Dame Law Review
The Court in Kiobel v. Royal Dutch Petroleum Co. relied on the presumption against extraterritoriality in declining to recognize a federal cause of action for the defendants’ alleged breaches of customary international law. The bulk of Chief Justice Roberts’s opinion for the Court defended the applicability of the presumption to the claims brought under the Alien Tort Statute (ATS). As Justice Alito’s concurring opinion noted, however, the Chief Justice’s opinion adopted a “narrow approach” that “[left] much unanswered.” Similarly, Justice Kennedy’s concurrence observed that the Chief Justice’s opinion properly “[left] open a number of significant questions.” In determining what exactly …
Overhauling Esa Private Land Provisions In Light Of The Renewable Energy Boom On Federal Public Lands, Blair M. Warner
Overhauling Esa Private Land Provisions In Light Of The Renewable Energy Boom On Federal Public Lands, Blair M. Warner
Notre Dame Law Review
Many of us are familiar with the recent rise in renewable energy development in the United States. What we are not as familiar with, however, is the story of the Mojave desert tortoise and how it succeeded in shutting down for three months what remains the largest solar energy project in the world. Taking a step back, the Endangered Species Act (ESA), now forty years old, has plodded along at a slow and steady pace, with Congress slowly chipping away at the ESA until it was transformed from “prohibitive to permissive.” While the ESA has had the benefit of a …
Determining Which Human Rights Claims "Touch And Concern" The United States: Justice Kennedy's Filartiga, Ralph G. Steinhardt
Determining Which Human Rights Claims "Touch And Concern" The United States: Justice Kennedy's Filartiga, Ralph G. Steinhardt
Notre Dame Law Review
If statutes were zombies, the Alien Tort Statute of 1789 (ATS) would lead the undead who walk among us. By one conventional narrative, the statute arose from the misty eighteenth-century murk, then lay moribund for nearly two centuries until 1980, when the Second Circuit breathed a strange new life into it with Filartiga v. Pena-Irala. That decision then remained a "monstrous" curiosity--generative more academic conferences than cases and more awards of tenure than damages--until 1984, when the Court of Appeals for the District of Columbia Circuit decided Tel-Oren v. Libyan Arab Republic. The three-way split among the panel …
Two Myths About The Alien Tort Statute, Anthony J. Bellia Jr., Bradford R. Clark
Two Myths About The Alien Tort Statute, Anthony J. Bellia Jr., Bradford R. Clark
Notre Dame Law Review
In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. …
No Excuse: The Failure Of The Icc’S Article 31 “Duress” Definition, Benjamin J. Risacher
No Excuse: The Failure Of The Icc’S Article 31 “Duress” Definition, Benjamin J. Risacher
Notre Dame Law Review
This Note proceeds in four Parts. Part I traces the historical development of “duress” through the common and civil law systems, World War II cases, the Model Penal Code (MPC) and, finally, through an in-depth analysis of the Erdemovic case before the ICTY Appeals Chamber discussed in the introduction. Part II then discusses “duress” under Article 31 of the Rome Statute and includes a survey of the Article’s drafting history, a statutory analysis of Article 31, and an application of the ICC definition of “duress” to the Erdemovic set of facts. This Part highlights the unjust result that inevitably occurs …