US Circuit Court Opinons In ATS Cases Are Not Impressing International Legal Scholars

No introduction is needed to understand the following excerpts from this post by Kevin Jon Heller, a legal scholar focused on many aspects of international law, including ATS litigation. His criticism of the 11th Circuit does leaves one to wonder just what the panel was thinking in not bothering to cite any law:

"Against my better judgment, I read the 11th Circuit’s opinion in Mamani v. Berzain, the Bolivian ATS case. I say against my better judgment because reading American judges on international law is kind of like listening to Kevin Costner play Robin Hood — you vaguely recognize the referent, but it is still painful to the ear. It’s bad enough that American judges consistently get international law wrong, as evidenced by the woeful Talisman Energy decision about the mens rea of aiding and abetting. But at least the Second Circuit tried to get the law right — it didn’t understand the international materials it cited, but at least it identified and addressed them. The 11th Circuit, by contrast, makes the Second Circuit seem like Ian Brownlie. It made no attempt at all to grapple with the international materials on crimes against humanity. Indeed, reading the opinion, you would have no idea that any such materials exist: although the court says that “[t]o determine whether the applicable international law is sufficiently definite, we look to the context of the case before us and ask whether established international law had already defined defendants’ conduct as wrongful in that specific context (pp. 16-17), there is not a single citation in the entire decision to any international source. No case. No convention. No UN report. No international-law scholar. Nothing. (emphasis added and Brownlie link inserted)

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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