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I. INTRODUCTION An obscure, single-sentence statute from the Judiciary Act of 1789, the Alien Tort Statute (ATS), provides a potential means for foreign nationals to bring action for redress where [...]

TABLE OF CONTENTS I. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION A. Prologue B. The Supreme Court and Native Americans C. Northwest Indian Cemetery Protective Association D. Reflections on NWIC E. Epilogue [...], This is the second in a series of critiques of the Supreme Court's jurisprudence on environmental law. The first series described three cases notable for their manipulation of facts and law and ill-concealed bias against environmental plaintiffs. One crippled the National Environmental Policy Act, the second crippled citizen standing to sue, and the third pivoted to undermine the safety of nuclear power plants. (1) The instant trio of cases add yet another troubling element to the canon. What distinguishes them, beyond the usual sleight-of-hand, is their failure to demonstrate the slightest understanding or concern for the plight of some of the most disadvantaged people on the planet. All of them brown. The first case discussed, Northwest Indian Cemetery, denied First Amendment protection from the destruction of an entire Native American culture. The second case, Sandoval, effectively destroyed Title VI of the Federal Civil Rights Act. The third case, Kiobel, slipped the bounds of decency altogether by declaring corporations immune from actions under the Alien Tort Claims Act, expressly designed to provide damages for acts viewed by the entire world as beyond the pale.

INTRODUCTION About international law, Hans Morgenthau once remarked," [t]here can be no more primitive and no weaker system of law enforcement than this; for it delivers the enforcement of the [...]

"How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is [...]

TABLE OF CONTENTS I. INTRODUCTION 33 II. LEGAL REALISM, RIGHTS AND REMEDIES 10 A. Legal Realism from Domestic to International Law 40 B. Legal Realism and the Right-Remedy Relationship 43 [...], In the aftermath of gross human rights abuses, when, if at all, should we forego legal accountability? Human rights scholars debated this question in the 1980s and 1990s, in what was referred to as the "peace versus justice" debate. The "justice" side won the day among human rights advocates, among whom the dominant position is that legal accountability is a necessary response to atrocity and cannot be limited by political considerations (a position this Article terms "human rights absolutism"). However, this question has resurfaced in the twenty-first century, in intense debates with interlocutors outside the field of human rights. Faced with the development of international criminal justice, Alien Tort Statute litigation, and regional human rights court jurisprudence on the right to a remedy, courts, state officials, and conservative scholars argue that legal accountability should be limited to avoid hampering states' control of their internal affairs and international relations (a position this Article terms "sovereigntism"). Some scholars take a middle ground and argue that legal responses to gross human rights abuses should be limited only to avoid harm to peace or democratic decision-making. However, the latter have not yet offered a persuasive justification for their position nor a rationale for distinguishing peace and democratic decision-making from other values advanced by sovereigntists as limits to accountability. This Article offers a new middle ground between sovereigntism and human rights absolutism, under a position it terms "human rights realism."Drawing on American legal realism and grounded in human rights values, this approach mandates limiting legal accountability to avoid those consequences that threaten certain core human rights, and the Article identifies armed conflict and economic inequality as relevant consequences. This approach overcomes both human rights absolutists' denial of the politics of accountability mechanisms and sovereigntists' subordination of accountability to values other than human rights. Moreover, drawing on legal realist writing on the right-remedy relationship, this Article offers a robust justification for accepting limitations to legal accountability across a wide range of mechanisms and a principled framework for considering such limitations in light of evolving empirical evidence. The argument is developed by revisiting the debate about universal civil jurisdiction and expanding the analysis to international criminal law and regional court jurisprudence. The Article shows that human rights realism offers not only a promising normative framework for integrating political considerations into human rights enforcement but also that it sheds new light on recent developments, such as African state threats of withdrawal from the International Criminal Court.

This roundtable was convened at 3:00 p.m., Thursday, March 28, 2019, by its convener, William S. Dodge of UC Davis School of Law, who introduced the presenter and panelists: Lucas [...]

On January 3, 2019, U.S. District Judge Theodore D. Chuang of the U.S. District Court of the District of Maryland took a crucial first step in redressing one of the worst human subjects research ethics violations in U.S. history. [ABSTRACT FROM AUTHOR]

The principle of universal jurisdiction allows a state to exercise jurisdiction over a category of cases when the state has no connection by territory, nationality, or other interest with the parties. While the concept of universal jurisdiction is not new, it has been almost exclusively applied to criminal matters. There has been relatively little focus on the application of universal jurisdiction in the civil sphere as a means for victims to seek judgments and compensation for serious violations of human rights. This article examines the theoretical distinction made by courts in the application of universal jurisdiction to civil cases and explores why the emerging norm of universal jurisdiction has been focused almost exclusively on criminal matters. The article surveys the status of universal civil jurisdiction in US and European courts, examines how jurisdiction is limited by courts, and assesses the arguments for and against a civil basis of universal jurisdiction. KEYWORDS: universal civil jurisdiction, Alien Tort Statute, universal jurisdiction., DURING THE 1990S AND INTO THE 2000S, THERE WAS A GREAT DEAL OF optimism among human rights advocates that notions of universal jurisdiction would be enforced in national and, eventually, [...]

I Introduction On 24 April 2018, the US Supreme Court handed down its decision in Jesner v Arab Bank. (1) This is the latest in a string of lawsuits to [...]

I INTRODUCTION: OUTLINING THE SCOPE OF THE PROBLEM 132 II ROADMAP AND RECOMMENDATION: RECOGNIZING NOVEL CIL TORTS 134 III ARAYA VNEVSUN: A GLIMMER OF HOPE FOR TORTS BASED ON INTERNATIONAL [...], This article argues that Canada should follow the lead of American jurisprudence in recognizing novel torts based on customary international law prohibitions. Canadian companies, often through their foreign subsidiaries, perpetrate disproportionately high numbers of human rights violations. The case of Araya v Nevsun presents an opportunity for the Canadian judiciary to take a step towards holding Canadian corporations accountable for transnational wrongdoing. The recently reaffirmed doctrine of adoption, along with the support of leading academics and a clear societal need for legal development in this area, support the proposition that Canadian tort law is ripe for expansion. KEY PHRASES Torts, Customary International Law, Mining. Private International Law, Class Actions, Doctrine of Adoption

"American law--the law made by the people's democratically elected representatives--does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, [...]

INTRODUCTION I. HUMAN TRAFFICKING A. Human Trafficking Defined B. Corporate Benefit from Human Trafficking C. Corporate Incentives to Regulate Human Trafficking D. Directors' Fiduciary Duty to Regulate Human Trafficking II. [...]

>Kiobel v. Royal Dutch Petroleum Co. involves an action under the Alien Tort Statute (ATS). The case was brought in the United States, Southern District of New York, by the widow of Dr. Barinem Kiobel, a Nigerian activist and member of the Ogoni tribe, and others for human rights violations committed in the Niger River Delta. Defendants include Royal Dutch Petroleum, Shell Transport and Trading Co., and Shell Petroleum Development Company of Nigeria. Although the human rights violations including murder and torture were allegedly committed by the Nigerian military government, it is claimed that the Royal Dutch Petroleum defendants aided and abetted the Nigerian military in the human rights violations. The plaintiffs had engaged in protests about the environmental damage caused by the Royal Dutch Petroleum defendants in the area of the Niger Delta and the plight of the Ogoni people in Ogoniland. At the trial level, the court decided that certain claims involving violations of the Law of Nations could be heard by the court. However, the case was appealed to the U.S. Supreme Court, which decided that there is a presumption against extraterritoriality in the application of the ATS, and that “mere presence” of a defendant corporation in the United States is insufficient for a court to assume jurisdiction. However, the question remains: What corporate presence would serve as a sufficient basis for a court to assume jurisdiction under the ATS? Given the possibility that corporations could, and perhaps in the future will, be found liable for human rights violations occurring in foreign locales even after Kiobel, prudent risk management behooves corporations and their counsel to monitor whether human rights violations are occurring in connection with their operations, even when those human rights violations are committed by foreign governments or their agents.

The recent decision in the US Supreme Court Kiobel case applied the presumption against extraterritoriality towards the Alien Tort Statute, decreasing the potential scope of tort actions that can be made against corporations for severe human rights violations. In light of the growing influence of multinational corporations and the lack of any international law regime to regulate corporate wrongdoing, this decision might be seen as a blow against one of the few potential avenues for justice for those victims of corporate human rights violations. The Alien Tort Statute is not a jurisdictional statute that allows for claims under international law but is rather a uniquely American cause of action unconnected to international law. The question remains whether an extension of American law to provide remedies for severe corporate human rights abuses can be justified in the absence of any such remedies existent in international law. This article will attempt to answer this question applying criteria developed by leading scholars in response to American exceptionalism. It will argue that the Kiobel decision, rather than being detrimental to holding corporations accountable, actually addresses many of the negative aspects of extraterritorial litigation whilst preserving some possibility of remedy for victims of severe human rights violations by corporations.

This paper examines through the lens of political recognition the U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum Co., (1) which upholds the territoriality principle regarding the reach [...]