Thursday, August 10, 2006

Roger Alford on the Ninth Circuit Rio Tinto ATS decision

I agree with Roger Alford, posting at Opinio Juris, here, on Ninth Circuit's new ATS decision in the Rio Tinto case. I agree that the majority opinion is underwhelming, at best, on all the critical legal issues in post-Sosa ATS litigation - corporate liability, what constitutes a cognizable claim under Sosa standards, the embracing the citation of treaties to which the US is not a party as evidence of customary law, and indifference to the views of the United States on international law as well as foreign relations issues of considerable importance.

In large part, however, the decision demonstrates just how unhelpful Sosa was as a legal opinion - "pointless" would be a more precise word. It settled nothing and simply left lower court judges to cite whatever part of Sosa they liked while going their own way. If you want to go forward with the ATS case, then you wave your hands and say that Sosa approves it; if you don't want to go forward, you do precisely the same thing.

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