A Thriving Atrocities Practice
Show notes
After following up on Justice Alito's summer interview, the new birthright-citizenship executive orders, and the Court's record-low approval numbers, we devote the episode to Cisco Systems v. Doe, the Falun Gong surveillance case that closes the door Sosa v. Alvarez-Machain left open for new Alien Tort Statute claims. We try to build a theory of the ATS from first principles — Section 9 of the Judiciary Act of 1789, the law of nations, and the Marbois affair — before running through two decades of the Court narrowing the statute. Then we ask what to make of "door closing" as a phenomenon, from Edwards v. Vannoy to Rucho, and whether the Court would really be stuck if the perfect ATS unicorn finally showed up. Along the way: whether Justice Alito is an I-95 or an Amtrak guy, the seven-case October calendar led by Suncor, Rooker anti-Feldmanism, and a Phoenix bar band called the Blackstone Three.
Highlights[00:00:21] Opening: 29 episodes makes a record-breaking season, and the secret to sub-4-hour recording sessions
[00:02:28] Justice Alito's WSJ interview with James Taranto: "Obviously I'm here for another term," the vultures, and his high school English teacher's psychoanalysis
[00:06:27] How Will became a libertarian: Mr. Flannery, Lexis news alerts for "Ayn Rand," and golfer David Duval
[00:09:48] Still no action on the mail-in voting applications; a White House ballroom emergency application expected any day
[00:11:15] No rehearing petition in Trump v. Barbara — instead, new executive orders probing the decision's edges
[00:15:32] The October calendar: only 7 cases, starting with Suncor — "conservative intuitions in search of a constitutional clause"
[00:17:04] Mailbag: Rooker anti-Feldmanism via Lance v. Dennis, and Michael Rosman on whether sex-segregated sports are really "equal opportunity"
[00:20:32] Gallup has the Court at 33% approval, a record low — the maximally anti-legitimacy strategy
[00:22:35] The main event: Cisco Systems v. Doe — an anonymous person versus a faceless corporation
[00:23:16] ATS first principles: Section 9 of the Judiciary Act of 1789, the law of nations as brooding omnipresence, and the Marbois affair
[00:37:27] The 1980 revival, Sosa v. Alvarez-Machain, and the door Justice Souter left ajar
[00:42:45] Two decades of narrowing: Kiobel, Jesner, Nestlé — and Will's brush with a thriving atrocities practice
[00:47:33] Cisco closes the door; the Edwards v. Vannoy parallel, and whether door closing is ever dicta
[00:52:33] Door closing as a genre: Vieth v. Jubelirer, Rucho — a Green Bag piece for Richard Re
[00:56:36] What about pirates? The Blackstone 3 — the doctrine, and the Phoenix bar band
[01:00:18] Implied causes of action, the slow death of Bivens, and the Ex parte Young irony after Trump v. Cook
[01:05:19] Scoring the opinion: a win for the Bradley–Goldsmith "Erie algorithm" — or selective originalism?
[01:13:33] Sign-off: rate and review — and if we go quiet, Will has been taken by pirates
Cases
Trump v. Barbara — the birthright-citizenship decision the new executive orders are testing
Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County — the OT26 opener
Lance v. Dennis, 546 U.S. 459 (2006) (per curiam) — the Stevens "Rooker good, Feldman bad" dissent
Commentary & articles
CNN on the Alito interview — coverage of James Taranto's Wall Street Journal interview
Jonathan Adler, "Amicus Brief in Suncor Energy v. County Commissioners of Boulder County" — the solo plaintiffs-side amicus
Oona A. Hathaway et al., "Has the Alien Tort Statute Made a Difference?," 107 Cornell L. Rev. (2022) — the settlements study cited in Cisco footnote 2
Samuel L. Bray & Paul B. Miller, "Getting Into Equity," 97 Notre Dame L. Rev. 1763 (2022) — why equity never needed causes of action
Other
Divided Argument, "Separation-of-Powers Police" (S4E23) — the Daryl Levinson Law for Leviathan book episode
The Blackstone Three — original and cover music for all events, parties, and concert venues