Justice Without Borders: Human Rights Cases in US ... - SSRN papers

Justice Without Borders: Human Rights Cases in U.S. Courts

LAW O Davis riginal POLICY JUSTICE Article January WITHOUT 2006 BORDERS Blackwell Oxford, Law LAPO © 0265-8240 January 1 28 Baldy &&Policy UK Center 2006 Publishing for Law Ltdand Social Policy and Blackwell Publishing Ltd. 2006

JEFFREY DAVIS

In 1980 the Second Circuit Court of Appeals broke with years of legal tradition and ruled that human rights victims could sue their oppressors in federal court— even if the alleged violations occurred outside the country. This court based the extension of its authority on a provision of the 1789 Judiciary Act now referred to as the Alien Tort Claims Act (ATCA). ATCA cases present a unique opportunity to study judicial behavior in the face of separation of powers interests, traditions of judicial restraint, sovereign immunity defenses, and an active internationalist movement to extend human rights guarantees worldwide. Combining legal analysis with quantitative methodology, I find that U.S. federal courts are slowly accepting an internationalist approach to human rights, and that interest groups are largely driving this transformation. Sovereignty concerns and judicial ideology are not conditioning case outcomes, but party resources and separation of powers issues are. Tonight you have power over me, but tomorrow I will tell the world. Dolly Filártiga, 1976

I. INTRODUCTION

Juan Romagoza Arce was using his surgical training to help peasants affected by El Salvador’s civil war when he was captured by government security forces and tortured for twenty-four days. Dr Romagoza suffered unspeakable brutality and his injuries still prevent him from practicing medicine. As he states, “[t]hey stripped me of my gift” (Phillips 2003). Years later, when commanders of El Salvador’s security forces were discovered in the United States, Dr Romagoza joined a law suit organized by Amnesty International and the Lawyer’s Committee for Human Rights. A Southern District of Florida jury found retired generals Guillermo Garcia and Carlos The author would like to thank Lauren Bowen, Herbert Kritzer and the anonymous reviewers for their invaluable assistance. Address correspondence to Jeffrey Davis Department of Political Science, University of Maryland, Baltimore County, 1000 Hilltop Circle, Baltimore, MD 21250, USA. Telephone: 410-455-2181; E-mail: [email protected]. LAW & POLICY, Vol. 28, No. 1, January 2006 ISSN 0265 – 8240 © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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Eugenio Vides Casanova liable for the injuries inflicted on Dr Romagoza under a little-used section of the Judiciary Act of 1789, now referred to as the Alien Tort Claims Act (ATCA).1 They awarded Dr Romagoza and two other victims over $74 million in damages. In response to the verdict Dr Romagoza stated, “I wanted to cry . . . cry out for all those who died in the streets, died in the country, died anonymously. I think they’d be happy. . . .” (Phillips 2003). In this unusual expansion of federal judicial power, a district court in Miami extended the reach of its authority to events that had occurred in El Salvador years before. Through the ATCA the court enforced international principles of human rights law, finding it to be incorporated within federal common law. Despite jurisdictional barriers, sovereignty issues, and evidentiary problems, this court provided Dr Romagoza with a small measure of justice. On 29 June 2004, the Supreme Court addressed the meaning of the ATCA for the first time. The Court ruled that the 1789 provision “enabled federal courts to hear claims in a very limited category defined by the law of nations” (Sosa v Alvarez-Machain 2004 at 2754). Rejecting the argument that the door was closed on law suits under the act, Justice Souter wrote for the majority, “the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today” (ibid. at 2765). While the court allowed subsequent suits under the ATCA, it was far less clear on the criteria that should guide the federal judiciary in these cases.2 This article will examine the many factors that influence federal judges in deciding these exceptional cases. ATCA jurisprudence offers a unique opportunity to study several facets of judicial politics on the battleground of human rights litigation. Case outcomes demonstrate the extent to which American judges are willing to depart from traditional notions of judicial restraint and embrace internationalism. In this research I also question the presumption that the judiciary will defer to the executive branch in foreign policy matters (see Ducat & Dudley 1989; Tolley 1990 – 91; Yates & Whitford 1998). The ability of interest groups to pursue their agendas through litigation is also tested. Lastly, ATCA cases permit the analysis of judicial decisionmaking in a compelling arena—testing to what extent judges are driven by their preferences in human rights cases. This litigation is particularly compelling because it places federal judges in the eye of a storm of competing forces—all striving for influence in the midst of often- dramatic factual circumstances.

II. THE ALIEN TORT CLAIMS ACT

Traditionally a state’s actions “inside its borders in relation to its own nationals remained its own affair, an element of its autonomy, a matter of its domestic jurisdiction” and “beyond the scope of international law” (Ratner 2002: 89). Indeed, U.S. courts have frequently recognized and enforced this © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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principle. Efforts by civil rights groups to combat racial discrimination using international conventions and treaties have fallen on deaf ears in the courts (Lockwood 1984; Bolling v Sharp 1954; Sweat v Painter 1950). Public interest groups failed in almost every effort to base legal arguments on principles of international law in issues such as South African hiring in the U.S. during apartheid, refugee assistance programs, and asylum claims (New York Times v New York Commission on Human Rights 1977; U.S. v Merkt 1986; Roshan v Smith 1985).3 However, in Filártiga v Pena-Irala (1980) the U.S. Court of Appeals for the Second Circuit ruled that federal courts had the authority to hear civil law suits brought by aliens for violations of international law. In 1978, Joel and Dolly Filártiga filed suit against Americo Norberto Peña-Irala. The Filártigas claimed that on 29 March 1976, police Inspector General Peña kidnapped, tortured, and killed seventeen-year-old Joelito Filártiga to punish his father Joel for opposing Paraguay’s dictator, Alfredo Stroessner (Filártiga 1980). On that night, police officers escorted Joelito’s sister Dolly Filártiga to Peña’s home to retrieve her brother’s body. Ms. Filártiga claims that, as she faced the horror of her brother’s tortured body, she told Peña, “[t]onight you have power over me, but tomorrow I will tell the world” (Filártiga 2004). Two years later an Amnesty International staff member discovered that Joelito Filártiga’s alleged killer, former Inspector General Peña-Irala, was in New York facing deportation proceedings. Amnesty International contacted the Center for Constitutional Rights, which immediately filed suit in federal court on behalf of Joel and Dolly Filártiga. Lawyers for the Center for Constitutional Rights argued that federal courts had jurisdiction over their claims under what would become known as the Alien Tort Claims Act. The Act states that “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” (28 USCS §1350). The District Court for the Eastern District of New York dismissed the suit on jurisdictional grounds but the court of appeals reversed. Writing for the three judge panel, Judge Kaufmann held that “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of parties” (Filártiga v Peña-Irala 1980 at 878). Therefore the court ruled that “whenever an alleged torturer is found and served with process by an alien within our borders, section 1350 provides federal jurisdiction” (ibid. at 878; see White 2004). Since the Second Circuit’s ruling, fifteen courts of appeals decisions in five circuits have followed the Filártiga court’s lead, and twenty-seven district court decisions have done so. While the Supreme Court has not specifically approved of the Second Circuit’s decision Justice Souter did state that the court’s opinion was “generally consistent” with the Filártiga decision (Sosa 2004 at 2765).4 In my research, I examine what has driven federal judges to © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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break with legal tradition and extend their authority to alleged human rights violations beyond U.S. borders. I also analyze how interest groups, the President and Congress, as well as legal arguments and factual situations, impact these decisions.

III. COMPETING FORCES IN HUMAN RIGHTS LITIGATION

A. STATE SOVEREIGNTY

Traditional notions of state sovereignty are being challenged by international trade agreements, regional unification agreements, and intra-national and international tribunals. Judiciaries in several countries are recognizing the principle of universal jurisdiction for egregious violations of human rights.5 Michael Byers comments on the shifting landscape of human rights enforcement, stating, “[t]he development of international human rights and the more recent growth of an ‘international civil society’ reflect an international system that is slowly but surely embracing the rule of law” (2000: 441). In ATCA cases, universality and international human rights collide with traditional doctrines of judicial restraint and state sovereignty. These disputes reflect the controversy over the proper role of courts, lawyers, and the political branches in modern democracy. Tolley (1990–91) perceives a division between realists, positivists, and internationalists. Realists believe international law merely governs relations between nations; positivists argue that the Supremacy Clause mandates the application of U.S. treaties in judicial proceedings; and internationalists consider international law supreme—overriding U.S. law. As Tolley (1990–91: 618) points out, the “[i]nternationalists’ goal conflicts sharply with classical doctrines of national sovereignty and judicial restraint in foreign policy making.” When judges hold individual defendants liable for violations of international law, they are challenging long-standing doctrines of state sovereignty (Henkin 2000; Shamir 2004).6 In Filártiga and its progeny, courts have seized upon the notion that “how a state treats individual human beings, including its own citizens, in respect of their human rights, is not the state’s own business alone and therefore exclusively within its ‘domestic jurisdiction,’ but is a matter of international concern and a proper subject for regulation by international law” (Ratner 2002, quoting American Law Institute 1987: §102(2)).7 These courts have thereby penetrated sovereignty barriers and applied international law norms to states and those acting under color of state authority. To take advantage of the general reluctance of some judges to transgress traditional barriers of state sovereignty, defendants can assert several sovereignty-related defenses. First, in a defense that is a direct extension of the sovereignty norm discussed above, defendants often claim they are immune from suit as a result of sovereign immunity (Ratner 2003; Tolley 1990–91). To overcome sovereign immunity claims, plaintiffs must convince © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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the court that the actions in question are not subject to immunity, or that the state consented to liability in the area. ATCA Plaintiffs have had success demonstrating the consent of the U.S. government under the Federal Tort Claims Act and the consent of foreign officials under Foreign Sovereign Immunities Act (Alvarez-Machain v U.S. 2003; Sosa 2004).8 Courts have held that foreign officials are not immune from suit if their actions are beyond the scope of their official authority (Hilao v Marcos 1996). Typically, courts are reluctant to trample on foreign sovereign states by extending their authority beyond the courts’ geographic jurisdiction. To capitalize on this reluctance, defendants in ATCA cases frequently assert the Forum Non Conveniens defense, arguing that the case should be heard in the country where the events took place. In Cabiri v Assasie-Gyimah (1996), District Court Judge Schwartz explained that, to successfully assert that defense, a defendant “must demonstrate that an adequate alternative forum exists and that, considering the relevant private and public interest factors . . . , the balance tilts strongly in favor of trial in the foreign forum” (ibid. at 1199). While some circuits apply the defense more broadly, those following the Second Circuit’s lead have refused to dismiss cases on these grounds if it is reasonably clear that the foreign court will not reach the merits of the case (Wiwa v Royal Dutch Petroleum 2000). Defendants can also invoke the Act of State Doctrine to argue the actions at the center of the suit are beyond the court’s territorial and legal authority. To claim the defense, defendants must “assert that their conduct was consistent with policies of a foreign sovereign” (Stephens 2001: 636). Courts then balance the interests of justice against the possibility of national embarrassment and the propriety of leaving the issue to the executive and legislative branches.9 Courts that extend the territorial reach of their authority beyond their districts and circuits are seemingly embracing internationalism and rejecting the more common positivist and realists approach (Tolley 1990–91). B. SEPARATION OF POWERS

In the area of international affairs, courts generally defer to the legislative and executive branches of government (Dames & Moore v Regan 1981; Crosby v National Foreign Trade Council 2000; Tolley 1990–91; Yates & Whitford 1998). Ducat and Dudley (1989) argue that “durable rules charter broad presidential discretion” in international relations cases (115). ATCA cases present a clash between this tradition and the rising tide of internationalism in human rights cases. Courts hearing these cases must frequently address the contention that the issues involved are restricted to the political branches for resolution—especially when the U.S. is a defendant. In other words, courts must address the Political Question Doctrine.10 For example, in Tel Oren v Libya (1984), when Judge Bork holds that “[n]either the law of nations nor any of the relevant treaties provides a cause of action that appellants may assert in courts of the United States,” he is “guided chiefly by separation © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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of powers principles, which caution courts to avoid potential interference with the political branches’ conduct of foreign relations” (ibid. at 799).11 Since Tel Oren, numerous courts have addressed the D.C. Circuit’s reasoning when considering ATCA claims and numerous defendants have pled the Political Question Doctrine as a defense. In Sosa (2004), the Supreme Court seemingly approved of the D.C. Circuit’s warning against treading on the power of the executive. Below, five judges of the Ninth Circuit wrote in dissent “by its judicial overreaching the majority has needlessly shackled the efforts of our political branches in dealing with complex and sensitive issues of national security” (Alvarez-Machain v U.S. 2003 at 658–59). Although the Supreme Court allowed suits under the ATCA, it sided with the Ninth Circuit’s dissenting judges on the question liability in this case. The Court recognized that the administration had broad discretion in conducting international affairs—including law enforcement operations. In fact Justice Souter cites Tel Oren when stating that because “attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution” (Sosa 2004, 2764). Congress also has a voice in the outcome of these cases. Some courts have held that asserting jurisdiction in ATCA cases treads on congressional authority by inventing a cause of action. On the other hand, others have argued that Congress endorsed the Second Circuit’s ruling in Filártiga by passing the Torture Victim Protection Act (TVPA) in 1992. The Act creates a federal cause of action “against any individual who under color of law of any foreign nations, subjects any individual to torture or extrajudicial killing” (Public Law No. 102-256 1992). The TVPA only allows suits arising from torture and extra-judicial killing, so not all ATCA plaintiffs can avail themselves of its provisions. In addition, it requires plaintiffs to exhaust their domestic legal remedies before proceeding in U.S. courts, which is often an implausible option for human rights victims. The will of Congress was a significant issue before the Supreme Court in Sosa (2004). Justice Souter pointed out that Congress had not disapproved of exercising judicial authority under the ATCA since the Filártiga decision and that it had only enhanced this ability by passing the TVPA.12 C. INTEREST GROUPS

Interest groups frequently carry their campaigns beyond legislative and executive departments to the courts (Olson 1990; Songer & Sheehan 1993; Songer & Kuersten 1995). As Tauber (1998: 192) points out, “[d]espite its supposedly counter-majoritarian nature, the federal judiciary, like the popularly accountable branches, is subject to group pressure.” Scholars disagree, however, about whether interest groups are more successful litigants. While George and Epstein (1992) find that interest groups prevailed more often before the U.S. Supreme Court in death penalty cases, Epstein and Rowland © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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(1991) reject the contention that interest groups are more successful in federal district courts in a broad range of cases. These findings suggest that in certain types of cases, where particular expertise, networking, and factual evidence is essential, interest groups may have an advantage in court. In my study, because ATCA cases require particularized expertise, communication, and factual evidence, interest group participation may significantly increase the likelihood of victory for the plaintiff.13 Human rights groups have been actively and successfully promoting rights issues in various political arenas worldwide. As Epp (1998) illustrates, an active rights-oriented legal sector is crucial if a nation is to undergo an individual rights revolution. Sikkink (1993) argues that human rights groups are highly connected and frequently coordinate their efforts. Referring to the “human rights issue network,” Sikkink illustrates how human rights groups in Latin America are “bound by shared values and by dense exchanges of information and services” (1993: 415). I argue that this network extends beyond Latin America to encompass groups litigating in the United States. After all, as Sikkink states, “the shared values that bind the actors in the human rights network are embodied in international human rights law” (ibid.: 416). In ATCA cases, human rights interest groups have been absolutely indispensable in extending the reach of U.S. courts (Tolley 1990–91). Groups such as the Center for Constitutional Rights, the Center for Justice and Accountability, and the Lawyers’ Committee for Human Rights have supported ATCA plaintiffs in over 42 percent of Court of Appeals cases decided since 1980.14 By pursing the Filártiga case in 1978, lawyers for the Center for Constitutional Rights were the first to win a human rights case in a federal court under the ATCA. Groups like the Center have often successfully coordinated their efforts to offer plaintiffs legal and factual expertise and to offer courts doctrinal choices in interpreting the ATCA and international law (Tolley 1990–91). They challenge the statist view of this jurisprudence and embrace the internationalist approach described by Tolley (1990–91), and by Jacobson and Ruffer (2003). D. VIOLATIONS OF INTERNATIONAL LAW

In order to state a claim for which federal courts have jurisdiction under the ATCA, plaintiffs must allege a violation of international law. As the Act states, “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” (28 USCS §1350). The Second Circuit held that it is “only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute” (Filártiga 1980 at 888). Quoting the U.S. Supreme Court, Judge Kaufmann found that these norms are revealed in the “works of jurists writing professedly on public law; or by © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law” (ibid. at 880, quoting United States v Smith 1820: 150–51). To be enforceable in federal court the rule must “command the general assent of civilized nations” (ibid. at 881). In Filártiga the plaintiffs claimed the defendant tortured Joelito Filártiga. The Second Circuit held that “there are few, if any, issues in international law today on which opinion seems to be so united as the limitations on a state’s power to torture persons held in its custody” (ibid. at 881). The Supreme Court adopted Judge Kaufman’s approach in defining the types of international law violations that may give rise to claims under the ATCA in Sosa (2004). Courts are therefore more likely to assert jurisdiction over claims that assert well-established human rights violations. These include “personal integrity” violations such as torture, extra-judicial killing, rape and forced disappearance (see Poe & Tate 1992). Because these actions are universally condemned, victims will have greater success with ATCA claims. On the other hand, courts have been more reluctant to assert jurisdiction over property or environmental rights claims (Bigio v Coca Cola 2001; Flores v Southern Peru Copper 2003).

IV. ANALYSIS

I analyze the factors that influence judicial decisions in ATCA cases by running two logit regressions. The first examines District Court decisions and the second examines Circuit Court of Appeals decisions. In each the dependent variable is the judge’s vote—with a vote in favor of the plaintiffs scoring 1 and a vote for the defense scoring 0.15 In my Court of Appeals model, my unit of analysis is the vote of each judge participating in a case.16 I consider all published and unpublished opinions in which a federal court has ruled on an ATCA issue from 1960 to the present. I include a variable to measure the involvement of interest groups in ATCA litigation. As I mention above, interest groups offer plaintiffs resources and expertise and thus a better chance of success (Epp 1998; George & Epstein 1992; Sikkink 1993). This variable is scored 1 if the plaintiffs are supported by an interest group and 0 if they are not. Resources may play a role for the defense as well. As Galanter (1974) points out, corporations often have greater resources and thus greater chances of success, especially in appellate litigation.17 In addition, plaintiffs may have difficulty convincing courts that corporations have met the “state action” requirement by acting under color of state authority (Shamir 2004). Kritzer (2003) demonstrates that governments are formidable foes in appellate litigation as well. For this reason I add two dummy variables that are scored 1 if the defendant is a corporation or the U.S. government and 0 if it is not.18 Sovereignty and separation of powers are crucial issues in ATCA cases. I include a variable that is scored 1 if a defendant asserts the sovereign © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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immunity defense. I created dummy variables for the Act of State and the Forum Non Conveniens defenses. However, these variables were correlated with my sovereign immunity variable. I therefore combined the two to create a variable that measures whether a defendant asserts either defense. This combination is theoretically sound because each defense represents an argument that the court should not trample on the sovereignty of another jurisdiction (see Bigio v Coca Cola 2001). The Forum Non Conveniens doctrine is based entirely on the notion that the case should be decided in another nation and, as Shamir (2004) states, “defenses based on [the Act of State] doctrine are a primary means of challenging the right of U.S. courts to judge conduct occurring abroad, in which a foreign sovereign took part” (Shamir 2004: 643). To measure separation of powers concerns, I include a variable that is scored 1 if a defendant claims the issues are non-justiciable under the Political Question Doctrine. To further address this concern I include variables that are scored 1 if the defendant is the United States (see above) and for my court of appeals model I include a dummy variable measuring whether the defendant is a foreign country or official. This variable is omitted from my district court model because it is highly correlated with my sovereign immunity variable. To capture another dimension of the separation of powers issue, I include a variable to reflect the party of the president. Because ATCA cases frequently involve foreign policy matters, the will of the president may be relevant. I include this variable to test whether the policy preferences of the sitting president have an impact on case outcomes. Occasionally, the president expresses his preferences directly as an amicus party. I, therefore, include a measure to reflect whether the president has filed a brief in support of the defendant. Because the executive has only done so once in district court cases to date, this variable is only included in the court of appeals model. To measure the influence of congress on ATCA cases, I include a variable that is scored 1 if the plaintiffs allege the Torture Victim Protection Act.19 To succeed plaintiffs must at least allege a violation of international law that commands “the general assent of civilized nations” (Filártiga 1980 at 881). There is a greater likelihood that courts will recognize these violations if plaintiffs allege a well-established human rights violation. Therefore, I create variables that measure the human rights violations alleged. In the court of appeals model I create a personal integrity violation variable that is scored 1 if plaintiffs base their claims on torture, extra-judicial killing, forced disappearance, or rape.20 In my district court model the personal integrity variable including torture was highly correlated with my interest group variable. I therefore create a personal integrity violation measure that is scored 1 if plaintiffs allege extra-judicial killing, forced disappearance, rape, or unlawful imprisonment. If other human rights violations are alleged these variables are scored 0. Scholars of judicial behavior have found that judges, especially at the appellate level, pursue their policy goals in their decision making (Segal & © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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Spaeth 1993; Sheb, Bowen & Anderson 1991). I therefore include measures of ideology in each of my models. For the district court model I use the party of the appointing president as a surrogate for ideology. While not an ideal measure, party has been an accepted surrogate for ideology for judges in numerous studies (see Kilwein & Brisbin 1997; Songer & Tabrizi 1999). For the circuit court model I use a measure of ideology developed by Robert Howard and David Nixon (2003). These scholars construct a measure of ideology using coefficients for a judge’s party, the appointing president’s party, the presence of unified government at time of appointment, the judge’s state ideology, and whether the judge was a wartime appointment, a Southern Democrat, or a Northeastern Republican.21 While ideology is a good predictor for outcomes in civil liberties cases, scholars have not established an ideological connection in human rights cases. This analysis will reveal if such a relationship exists. In addition to the factors discussed above, I include a control variable to measure the effect of precedent of judicial decisions. Judges are, to some extent, constrained by precedent, especially when their decisions are subject to review by the court establishing the precedent (Songer, Segal & Cameron 1994). I therefore score this variable 1 if the circuit in question has held that the ATCA grants federal courts jurisdiction and provides plaintiffs with a cause of action. For example, the Second Circuit, and all districts within that circuit, are scored 1 after the Filártiga case in 1980.22 Table 1 sets out the variables for each of my models. A. DISTRICT COURT RESULTS

Tables 2 and 3 reflect the results of my logit regressions.23 The district court results reflect some interesting findings. First, claims of personal integrity Table 1. ATCA Analysis Variables

Variable Judgement Ideology Democratic president TVPA Precedent U.S. defendant Corporate defendant Foreign country defendant Plaintiff interest group Personal integrity violation Political question argument Sovereign immunity defense Jurisdictional sovereignty defense

Dist. Ct. Mean

Dist. Ct. Std Dev

Ct. App. Mean

Ct. App. Std Dev

0.37 0.57 0.36 0.68 0.50 0.13 0.28 N/A 0.29 0.57 0.12 0.29 0.30

0.486 0.499 0.482 0.468 0.503 0.340 0.450 N/A 0.457 0.499 0.325 0.457 0.462

0.34 0.0550 0.29 0.06 0.45 0.34 0.19 0.15 0.45 0.40 0.27 0.17 0.1469

0.476 0.26358 0.457 0.244 0.500 0.476 0.393 0.355 0.500 0.491 0.443 0.375 0.35520

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Table 2. District Court Model Logit Results Independent Variable Party Precedent Personal integrity violation United States defendant Corporate defendant Plaintiff interest group Sovereign immunity defense Jurisdictional sovereignty defense Political question defense TVPA Democratic president Constant

Coefficient (Std Error)

Predicted Probabilities

0.497 (0.740) 1.709* (0.809) 2.340* (0.918) −0.304 (1.426) −0.505 (0.826) 2.111* (0.857) −1.483 (0.974) 1.723 (0.894) 0.946 (1.201) 1.087 (0.916) 0.795 (0.787) −3.665* (1.199)

9.5%a 32.6% 41.1% −5.6% −9.3% 45.4% −24.6% 37.0% 21.0% −22.8% 16.2%

Notes: N = 76 (One entry for each ATCA decision); * p < 0.05; Log Likelihood = −29.03; Chi2 = 41.98 Pseudo R2 = 0.42; Prob > Chi2 = 0.0000 a Percentage increase per rise from 0 to 1 in dummy variables.

violations increase the possibility that judges will extend their authority and rule in favor of the plaintiffs by 41 percent. The coefficient is positive, statistically significant, and demonstrates that courts are apparently far more willing to extend their authority when these violations are alleged. In addition, interest group representation helps plaintiffs win ATCA cases. This coefficient is positive and statistically significant to the 0.05 level. Interest group representation increases the likelihood of a decision for the plaintiffs 45.4 percent. Clearly the strategic coordination and expertise provided by groups such as the Center for Constitutional Rights, the Center for Justice and Accountability, and the Lawyers Committee for Human rights has a significant impact on outcomes in ATCA cases. As expected, precedent in favor of asserting jurisdiction in ATCA cases increases a plaintiff’s chances of success 32.6 percent. At the district court level, none of the sovereignty defenses appear to have a significant impact. To the extent they are willing to afford relief, © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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Table 3. Court of Appeals Model Logit Results Independent Variable Ideology Precedent Personal integrity violation United States defendant Corporate defendant Democratic president Plaintiff interest group Foreign country defendant U.S. amicus for the defendant Sovereign immunity defense Political question defense Jurisdictional sovereignty defenses TVPA Constant

Coefficient (Std Error) −0.366 (1.052) 1.961* (0.873) 1.669* (0.666) −1.834 (1.113) −7.764*** (2.347) −1.338 (0.998) 5.727*** (1.759) −0.145 (0.887) −2.848* (1.348) 2.485 (1.380) −3.290* (1.321) 0.255 (1.063) 1.909 (1.168) −2.144*** (0.667)

Predicted Probabilities 1.1%a 25.4%b 22.4% −18.1% − 40.6% −13.0% 77.3% −1.6% −18.0% 41.6% −20.5% 3.2% 24.4%

Notes: N = 143 (One entry for each judicial vote in ATCA decisions); *** p < 0.005, ** p < 0.01, *p < 0.05, The model correctly classifies 85.3% of the outcomes; Log Likelihood = − 49.83; Chi2 = 84.17 Pseudo R2 = 0.46 Prob > Chi2 = 0.0000. a Percentage increase per rise in one standard deviation of from the base score or mean; b Percentage increase per rise from 0 to 1 in dummy variables.

judges appear undeterred by the sovereign immunity, Forum Non Conveniens, and Act of State defenses. Moreover, asserting the Political Question Doctrine does not appear to help defendants either. Nor does ideology appear to have a significant impact on these case outcomes, suggesting that perhaps human rights cases are not susceptible to traditional ideological motivations. The model is well specified with a pseudo R-squared score of 0.42, a Nagelkerke R-squared score of 0.605, and a Hosmer and Lemeshow score of 0.992. It correctly predicts 81.6 percent of district court outcomes, an improvement of 18 percent on pre-model predictions.24 © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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B. COURT OF APPEALS RESULTS

As Table 3 demonstrates, the court of appeals model reflects even more compelling results. Precedent is positively related to case outcomes in ATCA cases and is statistically significant at the 0.05 level. If a circuit court has ruled that the ATCA grants federal courts jurisdiction to hear human rights cases, plaintiffs are 25.4 percent more likely to prevail in subsequent cases. Once again, allegations of personal integrity violations contribute significantly to plaintiffs’ success rates (at a significance rate of 0.05). When plaintiffs base their claims on personal integrity human rights violations, their chances of success increase 22.4 percent. As in the district courts, interest group representation helps plaintiffs’ chances. In the court of appeals, plaintiffs are 77.3 percent more likely to prevail if represented by an interest group. There is evidence that resources contribute to success rates for the defense as well. When suing corporate defendants, plaintiffs are 40.6 percent less likely to succeed. Both the interest group and corporate defendant variables are significant at the 0.001 level. The court of appeals results suggest that separation of powers concerns are important to circuit court judges. When the United States files a brief in support of the defendant, plaintiffs are 18 percent less likely to succeed. Moreover, plaintiffs are 20.5 percent less likely to prevail when a defendant asserts the Political Question Doctrine as a defense.25 The court of appeals model is also well specified with a pseudo R-squared score of 0.49, a Nagelkerke R Square score of 61.5, and a Hosmer and Lemeshow score of 0.122. The model correctly predicts the outcome of 87.4 percent of the cases which is an improvement of 20% over pre-model predictions.26 C. IMPLICATIONS

My findings support the contention that courts are slowly shedding traditional norms of sovereignty, separation of powers, and judicial restraint in international issues. Indeed, as I have shown above, this is supported by the 2004 Supreme Court case of Sosa v Alvarez-Machain. In limited circumstances some federal judges appear to be embracing emerging doctrines of universality and internationalism. As my results demonstrate, sovereignty defenses do not significantly impact outcomes. Neither sovereign immunity nor my jurisdictional sovereignty variables were significant factors. In addition, neither suits against foreign countries nor suits against the U.S. were less likely to produce victories for ATCA plaintiffs. The only evidence of traditional statist jurisprudence in ATCA cases is found in the effect of U.S. amicus briefs and the Political Question Doctrine. Both significantly reduce the likelihood that a court will allow a claim. This tendency is reflected by the Supreme Court as well, as Justice Souter cautioned courts to avoid tampering in international affairs (Sosa 2004). © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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Human rights groups have been actively challenging traditional rules on jurisdiction, sovereignty, and the role of the courts. They have had success expanding rights in developing democracies and in the European Union (Jacobson & Ruffer 2003; Sikkink 1993). My results suggest that activist groups are indeed breaching traditional barriers to international human rights protections in the Unites States as well. This is especially true when they allege violations of personal integrity human rights, such as torture an extrajudicial killing. Lower federal courts, and now the Supreme Court, are more comfortable in allowing a cause of action if it is based upon a universally acknowledged principle of international law (see Sosa 2004; Filártiga 1980).27 Lastly, ideology is not a significant factor in either model.28 Unlike findings in civil liberties and civil rights areas, in ATCA cases liberal judges and conservative judges appear to be equally receptive or unreceptive. This may suggest that ideology does not impact decisions on human rights issues. To fully test this non-finding I run my models with several interactive terms— combining ideology with the sovereign immunity, jurisdictional sovereignty, political question defense, and the U.S. defendant variables.29 None of these interactive terms were significant in either model. It is therefore possible that human rights cases are above the fray of traditional ideological boundaries. The Supreme Court’s decision in Sosa (2004) lends some support to this possibility. Only the three most conservative justices differed with the majority view of the ATCA, and even they refrained from dissenting. Indeed, other Supreme Court cases in which international affairs are at issue break with traditional ideological predictions (see unanimous decisions in Crosby v National Foreign Trade Council 2000; Dames & Moore v Regan 1981).30 Most recently in Hamdi v Rumsfeld (2004), traditional ideological coalitions evaporated as the Court required due process rights for U.S. cituzeins alleged to be enemy combatants in an 8:1 decision. Another possibility is that ideological positions have not, as yet, been staked. Now that the political branches are becoming involved in these cases, with President Bush’s participation in the Sosa case and in a Ninth Circuit case, positions may take shape in the courts (see Doe v Unocal 2002).

V. CONCLUSION

Victories in ATCA human rights cases breach national sovereignty and instead recognize “the worth of human personalty as the ultimate unit of law” (Ratner 2002: 90). Jacobson and Ruffer (2003: 75) argue that the individual prosecution of rights represents a “dramatic but hidden revolution” in the conceptualization of democracy. Federal courts may be experiencing the early salvos in this revolution. ATCA cases seem to be on the rise. Circuit Courts of Appeals have decided fourteen cases between 2000 and 2004, while they decided only thirty-one cases between 1976 and 1999. District © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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courts have issued thirty-six decisions between 2000 and 2004, and only forty before that time. Moreover, ATCA plaintiffs won 39 percent of their district court cases from 2000 to date and only 32 percent of the cases brought before that date. In the court of appeals plaintiffs won 36 percent of the cases brought after 2000, and only 33 percent of cases brought before that date. Now that the Supreme Court has left the “door ajar” for a limited number of cases, human rights advocates will doubtlessly test their ability to pry it open to new causes of action. The Court challenged the federal judiciary to adopt a “restrained conception” of its authority to recognize new causes of action in this area. In light of the Courts somewhat loose guidelines, it will be fascinating to see how this revolution proceeds—and how the lower courts exercise the “vigilant doorkeeping” required by the Supreme Court (Sosa 2004 at 2764). These issues are compelling targets of further research as the controversies play out in the various institutional battlefields worldwide. They are critical to our understanding of democracy, human rights, and the proper role of courts. According to human rights lawyer and scholar Michael Byers, “[o]nly in a world with generally accepted rules and institutions is there space for individuals and human rights groups to flourish, to challenge the prerogatives of state sovereignty . . . with moral authority and the slow but sure evolution of binding rules and effective judicial processes” (2000: 441). In ATCA cases federal judges appear to be embracing this evolution.

jeffrey davis is an Assistant Professor of Political Science at the University of Maryland, Baltimore County. He practiced law as an Assistant Attorney General for the State of Georgia and as counsel to the Atlanta School Board before obtaining his Ph.D. from Georgia State University.

NOTES

1. Some courts refer to the provision as the Alien Tort Statute (Sosa v AlvarezMachain 2004; Tel-Oren v Libya 1984). 2. The Court stated that “whatever the ultimate criteria for accepting a cause of action subject to jurisdiction under [the ATCA], we are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATCA] was enacted” (Sosa 2004 at 2765). 3. Only recently has the modern Supreme Court begun to mention extra-national law in support of its decisions (see Atkins v Virginia 2000; Lawrence v Texas 2003). 4. Justice Souter cited Filártiga after stating that the “limit upon judicial recognition [of actions] is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court” (Sosa 2004 at 27652766). In addition, the Court pointed out that “The position we take today has © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

Davis

5.

6.

7.

8.

9. 10.

11.

12.

13. 14. 15.


been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filártiga v Peña-Irala” (Sosa 2004 at 2764). In 1998, for example, former Chilean dictator General Augusto Pinochet was arrested in London on a warrant issued by a Spanish judge accusing Pinochet of human rights violations. Despite intense political pressure and conflicting interpretations of international law, the British law lords ruled that Pinochet was not immune from prosecution for allegedly ordering torture, disappearances, and extrajudicial killings. Under the state sovereignty norm, courts generally refuse to apply principles of international law when considering individual challenges to state actions. The state action requirement holds that international law does not control individual behavior. The sovereign immunity and state action doctrines can present litigants with a legal Catch-22 because sovereignty concerns can bar actions against states and courts often refuse to apply international law to non-state actors (Shamir 2004). Human rights groups have stretched these doctrines to apply international law to non-state actors if they are acting under color of state authority—by, for example, using state troops or by acting as an arm of the state (Ratner 2002; see Doe v Unocal 2002). For example the Supreme Court stated in Sosa that the Tort Claims Act “gives federal district courts jurisdiction over claims against the United States for injury ‘caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment’” (2004 at 2747 quoting 28 USC §1346(b)(1)). This defense should not be confused with the “state action” requirement, which generally holds that international law only binds states and those acting under color of state authority. While justiciability is not technically a jurisdictional issue, in ATCA cases it is. If a court cannot consider plaintiffs’ international law allegations because they present a political question the court can not assume jurisdiction by the express terms of the ATCA. Four years after the Filártiga decision the D.C. Circuit Court of appeals considered a suit brought by Israelis against Libya, the Palestinian Liberation Organization, and other groups, for injuries sustained in a terrorist bombing attack (Tel Oren v Libya 1984). The three-judge panel ruled that federal courts did not have jurisdiction to hear the claims. While Judge Edwards believed that the ATCA did grant plaintiffs the right to sue in federal court for violations of international law, Judges Bork and Robb did not. They argued that the issues were non-justiciable political questions better left to the executive and legislative branches to resolve. Congress “has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.” (Sosa 2004 at 731). No ATCA defendant has been supported by an interest group. The Lawyers Committee for Human Rights has recently changed its name to Human Rights First. Because my models include cases decided from 1960 to present, autocorrelation and heteroskedasticity are concerns (Beck, Katz & Tucker 1998). The common remedy for these concerns is the inclusion of a lagged dependent variable in the model. However, because there is not an entry for each district and circuit or for each year, this remedy would be inappropriate in this analysis (ibid.). To ensure there are no heteroskedasticity problems, I plotted the residuals and probabilities for each model. To spot possible autocorrelation problems, I plotted the


76 LAW & POLICY

16. 17. 18.

19. 20. 21.

22.

23.

24.

January 2006

residuals for each year of my analysis for both models. None of these plots revealed any indication of heteroskedasticity or autocorrelation. (Stimson 1985; Green 1997; Beck, Katz & Tucker 1998; Gujarati 1995). In an additional diagnostic for autocorrelation, I tested whether the residuals were serially correlated using the “runtest” command in STATA. The test demonstrated fifty-six runs for the court of appeals model and thirty-six for the district court model— sufficiently high numbers to quell any concerns of autocorrelation. Because judges on the federal courts of appeals are free to dissent their votes are independent units of analysis. Corporations also may prevail because they are frequently accused of environmental and property related human rights violations (Bigio v Coca Cola 2001), although there are exceptions (Doe v Unocal 2002). Another potential problem when specifying quantitative models is collinearity or multicollinearity between the independent variables. Therefore, I have correlated my independent variables and structured my models so that no collinearity problems are indicated. I also tested for multicollinearity using the variance inflation factor statistic or VIF (Chaterjee & Price 1991; Stine 1995). The VIF statistic is used to measure the extent to which multicollinearity has increased the variance of the slope estimate (Stine 1995). According to Chaterjee and Price (1991) VIF scores of 10 or higher would indicate multicollinearity problems. In my models these scores were lower than 3. I also run the “collin” diagnostic in STATA. In addition to reporting VIF scores this diagnostic reports “tolerance” values. Tolerance values of less than 0.1 indicate collinearity problems. In my district court model the tolerance scores were all over 0.54, and for my court of appeals model they were over 0.52. Members of congress have not filed amicus briefs in ATCA cases before federal district court or the circuit court of appeals. Some plaintiffs assert human rights violations based on allegations of environmental damage, property seizure or destruction, and other economic wrongs. The Howard and Nixon (2003) measure is more robust than that of Giles, Hettinger and Peppers (2001) because the Giles “approach does not distinguish between different judges appointed by the same president” (Howard & Nixon 2003: 248). I re-scale their data so that positive numbers represent liberal judges and negative numbers represent conservative judges. Therefore, if liberal judges are more receptive to ATCA cases, the relationship will be positive. Because these cases reflect an innovative interpretation of an old statute, a positive ruling would increase the likelihood of subsequent positive rulings; and no decision or a negative decision on the issue would encourage the status quo. Logit produces estimates of the contribution each independent variable makes to the outcome of the dependent variable by returning the log of the odds ratio of an event happening (of a court deciding in favor of plaintiffs, for example). These numbers are then converted to probabilities to assess more comprehensible results. I convert the logit coefficients to probabilities by using an Excel-based post-estimation program created by J. Scott Long at Indiana University. This program, like those available with STATA, produces the percentage change in probabilities per increase in one unit from the mean of one variable with all other variables held constant at their mean. To double-check the proper specification of my model I conduct STATA’s “linktest.” This diagnostic rebuilds the model using the predicted value and predicted value squared as the predictors. If the predicted values squared are statistically significant this indicates that important predictors have been omitted from the model. In the linktest for my district court model the predicted values squared are not statistically significant with a z-score of -0.969.


Davis


25. Some coefficients in each model that one would expect to be negative are positive. For example, the sovereign immunity and jurisdictional sovereignty variables test positively. These findings are driven by the fact that the defenses are frequently offered vicariously by corporate defendants (Shamir 2004). Courts therefore are reluctant to allow defendants to prevail on the basis of those defenses (Wiwa v Royal Dutch Petroleum 2000; Canadian Transport Co. v U.S.1980). 26. I also conduct STATA’s “linktest” on my court of appeals model (see note 23). This test reveals that the predicted values squared are not statistically significant with a z-score of 1.287—an indication that no important predictors were omitted from my model. 27. Justice Souter cites Filártiga approvingly to demonstrate that the limit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court (Sosa 2004 at 732). 28. To ensure that my ideology results are not being driven by the Howard and Nixon (2003) ideology measure I run the Court of Appeals model using the party of the appointing president as a proxy for ideology. The results were unchanged. 29. I convert each variable to positive values and then combine them so that the highest values represent conservative judges hearing cases against the U.S. or with the sovereignty defenses alleged and the lowest values represent liberal judges with a non-U.S. government defendant or no sovereignty defense alleged. 30. See also the near unanimous decision in U.S. v Curtss-Wright Export Inc. (1936).

REFERENCES

American Law Institute (1987) Restatement (Third) of the Foreign Relations Law of the United States. St. Paul, Minn.: American Law Institute Publishers. Beck, Nathaniel L., Jonathan Katz, and Richard Tucker (1998) “Taking Time Seriously: Time-Series-Cross-Section Analysis with a Binary Dependent Variable,” American Journal of Political Science 42(4): 1260–88. Byers, Michael (2000) “The Law and Politics of the Pinochet Case,” Duke Journal of Comparative and International Law 10: 415 – 41. Chatterjee, Samprit, and Bertram Price (1991) Regression Analysis by Example. New York: John Wiley & Sons, Inc. Ducat, Craig R., and Robert L. Dudley (1989) “Federal District Judges and Presidential Power During the Post-War Era,” Journal of Politics 51: 98–118. Epp, Charles R. (1998) The Rights Revolution. Chicago: Chicago Univ. Press. Epstein, Lee, and C. K. Rowland (1991) “Debunking the Myth of Interest Group Invincibility in the Courts,” American Political Science Review 85(1): 205–17. Filártiga, Dolly (2004) “American Courts, Global Justice.” New York Times 30 March. Galanter, Marc (1974) “Why the ‘Haves’ Come Out Ahead,” Law & Society Review 9: 95 –160. George, Tracey E., and Lee Epstein (1992) “On the Nature of Supreme Decision Making,” American Political Science Review 86: 323–37. Giles, Michael W., Virginia A. Hettinger, and Todd Peppers (2001) “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas,” Political Research Quarterly 54: 623 – 42. Green, William H. (1997) Econometric Analysis. 3d ed. Englewood Cliffs, N.J.: Prentice Hall. Gujarati, Damodar N. (1995) Basic Econometrics. New York: McGraw-Hill.


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Henkin, Louis (2000) “International Law: Politics, Values, and Functions.” In International Human Rights in Context. 2d ed., edited by H. J. Steiner & P. Alston. Oxford: Oxford Univ. Press. Howard, Robert M., and David C. Nixon (2003) “Local Control of the Bureaucracy: Federal Appeals Courts, Ideology, and the Internal Revenue Service,” Journal of Law and Policy 13: 233–56. Jacobson, David, and Galya Benarieh Ruffer (2003) “Courts Across Borders: The Implications of Judicial Agency for Human Rights and Democracy,” Human Rights Quarterly 25(1): 74 – 92. Kilwein, John C., and Richard A. Brisbin, Jr. (1997) “Policy Convergence in a Federal Judicial System: The Application of Intensified Scrutiny Doctrines by State Supreme Courts,” American Journal of Political Science 411: 122– 48. Kritzer, Herbert M. (2003) “The Government Gorilla: Why Does Government Come out Ahead?”, In In Litigation: Do the “Haves” Still Come Out Ahead? edited by H. M. Kritzer & S. S. Silbey. Stanford, Calif.: Stanford Univ. Press. Lockwood, Bert (1984) “The United Nations Charter and United States Civil Rights Litigation: 1946 –1955,” Iowa Law Review 69: 901–56. Olson, Susan M. (1990) “Interest-Group Litigation in Federal District Court: Beyond the Political Disadvantage Theory,” Journal of Politics 52(3): 854–82. Phillips, Joshua E. S. (2003) “The Case Against the Generals,” Washington Post 17 August 17: W–6. Poe, Steven, and Neal Tate (1994) “Repression of Human Rights,” American Political Science Review 88(4): 853–72. Ratner, Joshua (2002) “Back to the Future: Why a Return to the Approach of the Filartiga Court is Essential to Preserve the Integrity of the Alien Tort Claims Act,” Columbia Journal of Law and Social Problems 35(Winter): 83–131. Ratner, Morris A. (2003) “Factors Impacting The Selection And Positioning Of Human Rights Class Actions In United States Courts: A Practical Overview,” New York University Annual Survey of American Law 58: 623–47. Segal, Jeffrey A., and Harold J. Spaeth (1993) The Supreme Court and the Attitudinal Model. New York: Cambridge Univ. Press. Scheb, John M., Terry Bowen, and Gary Anderson (1991) “Ideology, Role Orientations, and Behavior in the State Courts of Last Resort,” American Politics Quarterly 19(3): 324 –35. Shamir, Ronen (2004) “Between Self-Regulation and the Alien Tort Claims Act: On the Contested Concept of Corporate Social Responsibility,” Law & Society Review 38: 635 – 63. Sikkink, Kathryn (1993) “Human Rights, Principled Issue Networks and Sovereignty in Latin America,” International Organization 47(3): 411–41. Songer, Donald R., and Ashlyn Kuersten (1995) “The Success of Amici in State Supreme Courts,” Political Research Quarterly 48(1): 31–42. Songer, Donald R., and Reginald S. Sheehan (1993) “Interest Group Success in the Courts: Amicus Participation in the Supreme Court,” Political Research Quarterly 46(2): 339–54. Songer, Donald R., Jeffrey A. Segal, and Charles M. Cameron (1994) “The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions,” American Journal of Political Science 38: 673–96. Songer, Donald R., and Susan J. Tabrizi (1999) “The Religious Right in Court: The Decision Making of Christian Evangelicals in State Supreme Courts,” Journal of Politics 19: 507–26. Stephens, Pamela J. (2001) “Beyond Torture: Enforcing International Human Rights in Federal Courts,” Syracuse Law Review 51: 941– 86.


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Stimson, James L. (1985) “Regression in Space and Time: A Statistical Essay,” American Journal of Political Science 29: 915 – 47. Stine, Robert A. (1995) “Graphical Interpretation of a Variance Influence Factor,” American Statistician 49: 53–56. Tauber, Steven C. (1998) “On Behalf of the Condemned? The Impact of the NAACP Legal Defense Fund on Capital Punishment Decision Making in the U.S. Courts of Appeals,” Political Research Quarterly 51(1): 191–219. Tolley, Howard (1990–91) “Interest Group Litigation to Enforce Human Rights,” Political Science Quarterly 105(4): 617–38. White, Richard Alan (2004) Breaking Silence: The Case That Changed the Face of Human Rights. Washington, D.C.: Georgetown Univ. Press. Yates, Jeff, and Andrew Whitford (1998) “Presidential Power and the United States Supreme Court,” Political Research Quarterly 51(2): 539–50.

CASES CITED

Alvarez-Machain v U.S., 266 F3d 1045 (9th Cir 2001). Alvarez-Machain v U.S., 331 F3d 604, 2003 App LEXIS 10949 (9th Cir 2003). Atkins v Virginia, 536 US 304 (2002). Beanal v Freeport-McMoran, 969 F Supp 362 (EDLA 1997). Bigio v Coca Cola, 239 F3d 440 (2d Cir 2001). Bolling v Sharp, 247 US 497 (1954). Cabiri v Assasie-Gyimah, 921 F Supp 1189 (SDNY 1996). Canadian Transport Co. v U.S. 663 F2d 1081 (DC Cir 1980). Crosby v National Foreign Trade Council, 530 US 363 (2000). Dames & Moore v Regan, 453 US 654 (1981). Doe v Unocal, 395 F3d 932, 2002 WL 31063976 (9th Cir 2002). Ex Parte Milligan, 71 US 2 (1866). Filartiga v Pena-Irala, 630 F2d 876 (2d Cir 1980). Flores v Southern Peru Copper, 343 F3d 140 (2d Cir 2003). Hilao v Marcos, 103 F3d 789 (1996). Hamdi v Rumsfeld, 542 US 507: 124 SCt 2633 (2004). Kadic v Karadzic, 70 F3d 232 (2d Cir 1995). Lawrence v Texas, 539 US 558 (2003). New York Times v New York Commission on Human Rights, 41 NY2d 345 (1977). Roshan v Smith, 615 F Supp 901 (DDC 1995). Sosa v Alvarez-Machain, 542 US 692; 124 SCt 2739, 2754 (2004). Sweat v Painter, 339 US 629 (1950). Tel Oren v Libya, 726 F2d 774 (DC Cir 1984). Thompson v Oklahoma, 487 US 815 (1988). U.S. v Curtiss Wright Export Inc., 299 US 304 (1936). U.S. v Merkt, 794 F2d 950 (5th Cir 1986). U.S. v Smith, 18 US (5 Wheat) 153 (1820). Wiwa v Royal Dutch Petroleum, 226 F3d 88 (2d Cir 2000).

LAWS CITED

Alien Tort Claims Act, 28 USCS §1350. Torture Victim Protection Act, Pub L No 102-256, 106 Stat 73 (1992). © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

80 LAW & POLICY

January 2006 APPENDIX: TABLE OF CASES

District Court Cases Case Schneider v Kissinger Lopez v U.S. Bowoto v Chevron Texaco In Re African-American Slaves Descendents Maugein v Newmont Mining United Bank of Africa v Coker Villeda Aldana v Fresh Del Monte Produce Cabello Barueto v Fernandez Larios Zhou v Peng Barrueto v Larios Burnett v Al Baraka Investment Abiola v Abubakar Bieregu v Ashcroft Anderman v Austria Rodriguez v Drummond Doe v Islamic Salvation Front Doe v Islamic Salvation Front Pres. Church of Sudan v Talisman Energy Tachiona v Mugabe Abdullahi v Pfizer Rosner v U.S. Ahmed v Hoque Tachiona v Mugabe Flores v S. Peru Copper Sarei v Rio Tinto Mining Cabello Barueto v Fernandez Larios Mehinovic v Vuckovic In re World War II Era Japanese Forced Labor Litigation Mendonca v Tidewater Cabello Barueto v Fernandez Larios Aguinda v Texaco Jogi v Piland Kruman v Christies Doe v Unocal Bodner v Banque Paribas Bao Ge v Li Peng Faulder v Johnson Iwanoa v Ford Jama v INS Jama v INS Miner v Begum Doe v Islamic Salvation Front

Cite 310 F 309 F 312 F 304 F

251 22 1229 1027

District DC DC NDCA NDIL

Year 2004 2004 2004 2004

298 F Supp 2d 1124 2003 WL 22741575 2003 WL 23205157

CO SDNY SDFL

2004 2003 2003

291 F Supp 2d 1360

SDFL

2003

286 F Supp 2d 255 2003 WL 22707846 274 F Supp 2d 86 267 F Supp 2d 907 259 F Supp 2d 342 256 F Supp 2d 1098 256 F Supp 2d 1250 257 F Supp 2d 115 256 F Supp 2d 1345 244 F Supp 2d 289

SDNY SDFL DC EDIL NJ CDCA NDAL DC SDFL SDNY

2003 2003 2003 2003 2003 2003 2003 2003 2003 2003

234 F Supp 2d 401 2002 WL 31082956 231 F Supp 2d 1202 2002 WL 1964806 216 F Supp 2d 262 253 F Supp 2d 510 221 F Supp 2d 1116 205 F Supp 2d 1325

SDNY SDNY SDFL SDNY SDNY SDNY CDCA SDFL

2002 2002 2002 2002 2002 2002 2002 2002

198 F Supp 2d 1322 164 F Supp 2d 1160

NDGA NDCA

2002 2001

159 F Supp 2d 299 157 F Supp 2d 1345

EDLA SDFL

2001 2001

142 F Supp 2d 534 131 F Supp 2d 1024 129 F Supp 2d 620 110 F Supp 2d 1294 114 F Supp 2d 117 201 F Supp 2d 14 99 F Supp 2d 774 67 F Supp 2d 424 22 F Supp 2d 353 22 F Supp 2d 353 8 F Supp 2d 643 993 F Supp 3

SDNY CDIL SDNY CDCA EDNY DC SDTX NJ NJ NJ SDTX DC

2001 2001 2001 2000 2000 2000 1999 1999 1998 1998 1998 1998

Supp Supp Supp Supp

2d 2d 2d 2d


Davis Nat’l Coalition Gov’t of Burma v Unocal Eastman Kodak v Kavlin Brancaccio v Reno Beanal Freeport-McMoran Doe v Unocal Hirsch v Israel Cabiri v Assasie-Gyimah Xuncax v Gramajo Paul v Avril Doe v Karadzic Lafontant v Aristide Bagguley v Matthews Denegri v Chili Amlon Metals v FMC Industria Panificadora v U.S. Jones v Petty Ray Inc Saltany v Reagan Forti v Suarez-Mason Forti v Suarez-Mason Guinto v Marcos Von Dardel v USSR Jaffe v Boyles Filartiga v Pena-Irala De Wit v KLM Zapata v Quinn Jafari v Iran Hedge v British Airways Tel Oren v Libya Trans Continental v Commonwealth Akbar v NY Magazine Valanga v Met Life Damaskinos v Societa Navifacion Schroder v Lavino Shipping Co. Adra v Clift


176 FRD 329

CDCA

1997

978 F Supp 1078 964 F Supp 1 969 F Supp 362 963 F Supp 880 962 F Supp 377 921 F Supp 1189 886 F Supp 162 901 F Supp 330 866 F Supp 734 844 F Supp 128 1992 US Dist LEXIS 10255 1992 US Dist LEXIS 4233 775 F Supp 668 763 F Supp 1154 722 F Supp 343 702 F Supp 319 694 F Supp 707 672 F Supp 1531 654 F Supp 276 623 F Supp 246 616 F Supp 1371 577 F Supp 860 570 F Supp 613 564 F Supp 23 539 F Supp 209 1982 US Dist LEXIS 16469 517 F Supp 542 500 F Supp 565

SDFL DC EDLA CDCA SDNY SDNY MA SDFL SDNY EDNY KA DC SDNY DC SDTX DC NDCA NDCA SDCA DC WDNY EDNY SDNY SDNY NDIL NDIL DC CDCA

1997 1997 1997 1997 1997 1996 1995 1994 1994 1994 1992 1992 1991 1991 1989 1988 1988 1987 1986 1985 1985 1984 1983 1982 1982 1982 1981 1980

490 F Supp 60 259 F Supp 324 255 F Supp 919

DC EDPA SDNY

1980 1966 1966

225 F Supp 292 195 F Supp 857

EDPA MD

1963 1960

Circuit 2 9

Year 2003 2003

DC DC 9 9 9 DC 11 9 2 9 2

2003 2003 2003 2003 2002 2002 2002 2002 2001 2001 2001

Court of Appeals Cases Case Cite Flores v Southern Peru Copper 343 F3d 140 Aranda v Dept. Social & 73 FedAppx 204 Health Services Soudavar v Iran 67 FedAppx 618 Hwang v Japan 332 F3d 679 Alvarez-Machain v U.S. 331 F3d 604 Deutsch v Turner, Mitsubishi et al. 317 F3d 1005 Doe v Unocal 2002 WL 31063976 Simpson v Lybia 326 F3d 230 Ford v Garcia 289 F3d 1283 Papa v U.S. 281 F3d 1004 Bano v Union Carbide 273 F3d 120 Alvarez-Machain v U.S. 266 F3d 1045 Bigio v Coca Cola 239 F3d 440 © 2006 Baldy Center for Law and Social Policy and Blackwell Publishing Ltd.

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Wiwa v Royal Dutch Petroleum Beanal v Freeport-McMoran Faulder v Johnson Martinez v LA Hilao v Marcos Alvarez-Machain v U.S. Abebe-Jira v Negewo Kadic v Karadzic Kadic v Karadzic Hamid v Price Waterhouse Estate v Marcos Koohi v U.S. Goldstar v U.S. Telesat v U.S. Bagguley v Bush Saltany v Reagan Carmichael v United Amareda Co v Argentina Sanchez v Reagan Tamari v Bache & Co. Tel Oren v Libya Ramirez v Weinberger Zapata v Quinn Cohen v Hartman Canadian Transport Co. v U.S. Filartiga v Pena-Irala Anh v Levi Benjamins v BEA Dreyfus v Von Finck Abiodune v Martin Oil Madison v Nat’l Maritime Union Khedevial Line v Seafarers Int’l

226 F3d 88 197 F3d 161 178 F3d 741 141 F3d 1373 103 F3d 789 96 F3d 1246 72 F3d 844 74 F3d 377 70 F3d 232 51 F3d 1411 978 F2d 493 976 F2d 1328 967 F2d 965 1992 US App LEXIS 18469 953 F2d 660 886 F2d 438 835 F2d 109 830 F2d 421 770 F2d 202 730 F2d 1103 726 F2d 774 724 F2d 143 707 F2d 691 634 F2d 318 663 F2d 1081 630 F2d 876 586 F2d 625 572 F2d 913 534 F2d 24 475 F2d 142 282 F2d 377 278 F2d 49


2 5 5 9 9 9 11 2 2 9 9 9 4 Fed DC DC 5 2 DC 7 DC DC 2 5 DC 2 6 2 2 7 3 2

2000 1999 1999 1998 1996 1996 1996 1996 1995 1995 1992 1992 1992 1992 1991 1989 1988 1987 1985 1984 1984 1983 1983 1981 1980 1980 1978 1978 1976 1973 1960 1960