Section Description Provided by Instructor
Limitations on registration: None
Method of Evaluation: Term Paper
Writing Credit Available: Major or Minor Writing Credit
The seminar explores the legal process of responding to historical crimes and other injustices by providing monetary compensation and other non-penal remedies. No international law background is required. Primary attention will be given to the history and development of the Alien Tort Statute from 1789 to the present. Specific topics include (1) the international law background of the 18th century, (2) the evolution of the ATS in appellate decisions prior to 2004, beginning with its revival in the surprising Filartiga case (2d Circuit,1980), (3) the interpretation of the Supreme Court's decision in Alvarez-Machain v. Sosa, (4) the application of the Sosa in recent and current cases ranging from the use of Agent Orange in Vietnam to the legal implications of the Iraq & Afghanistan wars, and 5) lawsuits against multinational corporations, usually in the extractive industries operating in emerging economies, where we will follow the Court?s upcoming decision in Kiobel v. Royal Dutch Shell. We will examine less familiar aspects of the Sosa case and related theories (e.g. disbarment proceedings, contract eligibility suspension) against largely-immune federal agents and officials and private contractors, an area of law that has blossomed with various revelations from the war on drugs, Iraq and Afghanistan, and Guantanamo, suits against foreign officials and governments, and some of the legal defenses (e.g. state secrets, political question, contractor immunity, and international sovereign immunity).
To put the ATS suits in context, the seminar will also examine some of the ways in which reparations and restitution have been awarded in recent decades in the US and other countries as part of the settlement of major wars and for human rights violations. The law generated by claims by loyalists after the American Revolution, for art looted by Napoleon (1815), and from slave emancipation in the Caribbean (1830s) and the US (1863-65) will be considered. But most of the modern case law originates with Germany, and so the course will examine the legacies of both the Versailles Treaty (1919) and the reparations and compensation arrangements that followed World War II. Turning to US courts, we will look at campaigns by Japanese Americans for compensation for wartime internment, as well as by Native Americans, African Americans for black reparations, and Holocaust survivors. Cases have been brought in US and foreign courts against Germany and Austria for Nazi crimes, Castro's Cuba, the Soviet Union and South Africa, former European colonial powers for looting from their colonies, post-colonial regimes for nationalizing the property of Europeans, divided and reunited Germany, former communist East European nations, and dictators around the world. As for the forms of looted property or wrongdoing or loss which have been the subjects of litigation, they include improperly seized real estate, artwork, and Swiss bank accounts, interrupted education and careers, forcible detention, torture, slave labor, unconsented human medical experimentation, forced prostitution and sterilization, forced adoption or institutionalization of poor, indigenous, or out- of-wedlock children, and illegal occupation (by Iraq, of Kuwait). The seminar will examine both the theory and applications of this new, broad, but fledgling area of litigation and statutory programs, and its intersection with the uniquely American ATS and related legal tools.
T 6:20 –8:10 p.m.
Method of Evaluation
J.D. Writing Credit
Minor (upon consultation), Major (only upon consultation)