1. Are you persuaded by the Court’s discussion of
(a) congressional
intent behind the passage of the ATS,
(b) the judiciary’s ability to recognize
claims under common law, or
(c) the role of the courts in cases involving
foreign relations? Which seems most important to the Court?
2. The Sosa majority stated that “the door is still ajar [to further
independent judicial recognition of actionable international norms] subject
to vigilant doorkeeping, and thus [U.S. courts remain] open to a narrow
class of international norms today.” Compare the sources that the Filartiga
court used to find the existence of a customary norm prohibiting official
torture and the sources that the Sosa court found insufficient to establish a
customary norm prohibiting arbitrary detention. What sources should future
ATS plaintiffs rely upon to establish the existence of a customary norm
actionable in ATS litigation?
