Extraterritorial Jurisdiction and Conflict of Laws
In a forthcoming Article, I take the Supreme Court’s recent jurisprudence on the presumption against extraterritoriality and view it through the lens of conflict of laws. In so doing, I attempt to show how the presumption mirrors features of conflicts doctrine and makes some of the same mistakes conflict law already has made. This list…
Continue ReadingThe ATS Clarification Act Can Protect Human Rights and Level the Playing Field for U.S. Businesses
As previously reported on TLB, Senators Durbin (D-IL) and Brown (D-OH) recently introduced the Alien Tort Statute Clarification Act (ATSCA), which, if passed, will clarify the extraterritorial reach of the Alien Tort Statute (ATS) and expand the statute’s jurisdiction to cover all defendants “present in” the United States. The ATS is one of our nation’s…
Continue ReadingDoe v. Meta and the Future of the Communications Decency Act
Two law firms recently filed a class action lawsuit on behalf of Rohingya refugees in the United States seeking at least $150 billion in compensatory damages from Meta (formerly Facebook). The plaintiffs in Doe v. Meta allege that Meta’s algorithms were designed to promote hate speech and misinformation about the Rohingya, a Muslim-minority population in Myanmar…
Continue ReadingCourt Holds that ATS Claims for Medical Experimentation Are Not Impermissibly Extraterritorial
In a recent decision, Estate of Alvarez v. The Johns Hopkins University, a federal district court held that claims under the Alien Tort Statute (ATS) based on nonconsensual medical experiments in Guatemala were not impermissibly extraterritorial. Although the district court ultimately granted summary judgment for the defendants on other grounds, the decision is significant because…
Continue ReadingNew Bill Would Amend the Alien Tort Statute to Apply Extraterritorially
Last week, Senators Dick Durbin and Sherrod Brown introduced a new bill, the Alien Tort Statute Clarification Act (ATSCA), that would amend the Alien Tort Statute (ATS) to apply extraterritorially. Since 1980, plaintiffs have relied on the ATS to bring international human rights claims in federal court against individuals and corporations. But since 2013, the…
Continue ReadingThrowback Thursday: Joseph Story and the Comity of Nations
One of the most influential books on transnational litigation was written nearly two centuries ago by a sitting Justice of the U.S. Supreme Court. Joseph Story’s Commentaries on the Conflict of Laws, first published in 1834, synthesized foreign and domestic cases regarding conflict of laws and the enforcement of foreign judgments. Story endorsed international comity…
Continue ReadingNew Article Argues that the Helms-Burton Act Has Backfired
In an article recently posted on SSRN, Gergana Sivrieva surveys cases filed under Title III of the Helms-Burton Act for trafficking in expropriated property. She shows that, surprisingly, the principal defendants have not been foreign companies investing in Cuba but rather U.S. companies with only attenuated connections to such property. Congress passed the Helm-Burton Act…
Continue ReadingThrowback Thursday: Ralf Michaels on Empagran’s Empire
Ralf Michaels’ brief book chapter on F. Hoffman-La Roche Ltd. v. Empagran S.A. fundamentally changed my understanding of that case—as well as my understanding of the Supreme Court’s recent approach to transnational cases more generally. Empagran seems like a sleeper of a case, a short opinion about yet another transnational antitrust class action. But from…
Continue ReadingCert Petition Challenges Second Circuit’s Comity Abstention Doctrine
A cert petition filed with the Supreme Court on March 21, 2022 challenges the doctrine of prescriptive comity abstention. The Second Circuit used this doctrine to reverse a $147 million antitrust judgment against Chinese companies for fixing the price of vitamin C sold into the United States. The Second Circuit’s decision relies on the kind…
Continue ReadingA Primer on Extraterritoriality
Extraterritoriality refers to the application of a state’s law beyond the state’s borders. Although the word “extraterritorial” often has negative connotations, international law permits a great deal of extraterritorial regulation. In a world where trade, information, crime, and lots of other things regularly cross borders, states often have an interest in regulating beyond the strict…
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