Two new short articles on the Alien Tort Statute (and the case pending before the US Supreme Court)

As I mentioned a few days ago, the Supreme Court will be addressing the issue it was supposed to decide but didn't in  Kiobel v. Royal Dutch Petroleum : whether corporations can be held liable under the ATS in a case called Jesner v. Arab Bank.  [For background history and the discussion surrounding Kiobel, go here, and scroll down.  There are two or three pages of posts, dating back to 2010.]

In anticipation of the decision in Jesner, which will be argued before the Court on October 11, the SCotUS blog has published two short articles on the issue presented by the case.  Both are written by people who also authored amicus briefs in the case.

The first one, available here, is written by the lawyer who represents the Chamber of Commerce.  Not surprisingly argues that the Court should rule for the defendants and hold the ATS bars claims against corporations.  It concludes that

ATS suits against corporations, in short, not only flout clearly enacted congressional policy, but also carry heightened risks of the very foreign-policy and other practical consequences that the Supreme Court has warned federal courts to avoid in fashioning federal common law and that the ATS itself was enacted to prevent. The Supreme Court should hold in Jesner that the federal-common-law cause of action authorized by the ATS does not extend to suits against corporations to enforce modern human-rights norms.

The second article, available here, is written by the lawyer for financial regulation scholars and former government officials who filed a brief in support of the plaintiffs, argues that the Court should hold that the statute does not ban claims against banks.  It concludes that

...Allowing liability for banks would be consistent with the broader policy goal of ensuring a safe and terrorist-financing-free financial system. Considering the importance of anti-terrorist financing and anti-money laundering to the stability and integrity of the U.S. financial system, banks should be held liable under the ATS for knowing and willful activity allowing terrorist groups access to U.S. dollar clearing. Indeed, creating a loophole for dollar clearing of terrorist financing would be exactly contrary to U.S. anti-terrorism policy. Establishing a hostile environment for terrorist financing is a longstanding and fundamental policy goal of the United States, and using private suits to find banks liable for knowing and willful illicit clearing will directly promote that goal.

Both articles have links to the amicus briefs, and all the documents in the case, as well as links to the articles and updates are available here.