STATUTORY ANALOGY AND LIABILITY OF AMERICAN CORPORATIONS UNDER THE ALIEN TORT STATUTE

Sasha W. Boutilier *

ABSTRACT: In Jesner v. Arab Bank, PLC, the Supreme Court held that foreign corporations are not subject to liability under the Alien Tort Statute (ATS). But the Court did not reach a decision as to whether American corporations could be liable. In a non-controlling portion of the plurality opinion, Justice Kennedy invoked statutory

* J.D. Candidate, 2021, New York University School of Law; B.A., 2017, University of Toronto. I am deeply grateful to Arthur R. Miller for his invaluable guidance in writing this Note. For their thoughtful comments on earlier drafts, thank you to participants in the Salzburg Global Seminar’s Lloyd N. Cutler Fellows Program and the New York University Centre for Human Rights and Global Justice Emerging Scholars Conference. Thanks as well to George Bogden and the staff of NYU Journal of Law & Liberty for their excellent editorial assistance. Mistakes are mine. 264

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 265

analogy. He argued that corporate liability should not be available under the ATS because the Torture Victim Protection Act (TVPA)— which does not allow corporate liability—represented Congress’s judgement as to the appropriate scope of ATS actions. The dissenting justices contested this argument, pointing out that another analogous statute, the Anti-Terrorism Act, allowed corporate liability and was more relevant given Jesner presented a terrorism, not torture, claim. This Note is the first to directly and systematically address the practice of statutory analogy as invoked by the Jesner plurality, and concludes that this practice is inadvisable in several regards. It is not supported by prior ATS precedent from the Court, and in fact departs from that precedent. Neither is it supported by more general precedent utilizing statutory analogy that the plurality cites to, nor by precedent on borrowing statutes of limitations (where statutory analogy is best-established), nor by statutory interpretation literature and precedent more generally. Further, particularities of the ATS’ sui generis history and purpose, precedent rejecting ATS-TVPA statutory analogy regarding extraterritoriality, and lingering interpretive uncertainties all discourage the practice’s usage. Additionally, this Note engages with debate over whether to categorize differing claims under a statute uniformly or whether to focus on the particular norm at issue when seeking out analogous statutes. Ultimately, this Note concludes that the practice of statutory analogy as employed by the plurality in Jesner in fact expands judicial discretion despite claiming to constrain it, as would a norm-by-norm approach. The Court, having granted certiorari in Doe v. Nestlé as to whether the ATS allows liability for domestic corporations, should avoid resort to statutory analogy in deciding the case.

INTRODUCTION The Alien Tort Statute (ATS) has consistently elicited interpretive inconsistency across the federal judiciary. This is perhaps unsurprising. As Justice Gorsuch noted of the ATS: “Any attempt to

266 New York University Journal of Law & Liberty [Vol. 14:264

decipher a cryptic old statute is sure to meet with challenges.”1 And the ATS is certainly old and at least somewhat cryptic. Described by Judge Henry Friendly as a “legal Lohengrin” of uncertain origin,2 the ATS was enacted as part of the Judiciary Act of 1789 and provides federal courts “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.” 3 The ATS then went virtually unused for 160 years.4 However, in 1980, the Second Circuit held in Filártiga v. Peña- Irala that torture was a permissible base of action under the ATS because it was akin to “clear and unambiguous” rules of customary international law at the time of the ATS’ enactment such as piracy and slave trading5—thus “opening the courthouse doors” to at least a limited range of transnational human rights litigation.6 In the forty years since Filártiga, just how far open the courthouse doors should be has been hotly disputed. Indeed, the ATS has been a lightning rod for debate over the proper relationship between the judiciary and the political branches, the importance of human rights to American foreign policy, and the status of customary international law as federal common law. Circuits have split with regard to liability of American corporations, aiding and abetting liability, and

1 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1417 (2018) (Gorsuch, J., concurring). 2 IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975). 3 28 U.S.C. § 1350 (2018). 4 See infra text accompanying note 52. 5 630 F.2d 876, 890 (2d Cir. 1980) (“[F]or purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.”). Dolly Filártiga and her father ultimately won a combined $10 million in judgments against Americo Peña-Irala, a police officer in Paraguay who had participated in kidnapping Dolly’s brother and torturing him to death. See Filártiga v. Peña-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984). 6 STEPHEN BREYER, THE COURT AND THE WORLD: AMERICAN LAW AND THE NEW GLOBAL REALITIES 134 (2015).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 267

more. 7 And the Supreme Court has proven far from prompt in inflecting uniformity into federal law. Corporate liability under the ATS has been particularly contentious. A circuit split emerged around 2010, with the Second Circuit barring corporate liability in Kiobel v. Royal Dutch Petroleum Co. and the Ninth, Seventh, Eleventh, and D.C. Circuits allowing it.8 The Supreme Court, hearing Kiobel on appeal, declined to address the corporate liability issue and instead dismissed the case on extraterritoriality grounds because the alleged customary international law violations did not sufficiently “touch and concern” the United States.9 Thus, hopes (and fears) were high when certiorari was granted in Jesner v. Arab Bank, PLC that the Court would finally resolve the festering circuit split on corporate liability—which it seemed the Court would have to address, having side-stepped the issue in Kiobel. However, Jesner ultimately only held that foreign corporations could not be liable under the ATS and declined to extend this holding to American corporations, 10 leaving the circuit split on this issue unresolved. 11 Justices Alito and Gorsuch, who each issued concurrences, only joined the parts of Justice Kennedy’s plurality opinion in Jesner that resolved the issue on concerns regarding

7 14A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 3661.1. 8 Compare Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010) (holding corporations cannot be liable under the ATS), and In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144 (2d Cir. 2015), with Doe I v. Nestlé USA, Inc., 776 F.3d 1013, 1021–22 (9th Cir. 2014) (allowing corporate liability under the ATS), and Sarei v. Rio Tinto, PLC, 671 F.3d 736, 747 (9th Cir. 2011) (same), vacated on other grounds by 569 U.S. 945, and Doe v. Exxon Mobil Corp., 654 F.3d 11, 40–55 (D.C. Cir. 2011) (same), and Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011) (same), and Enrique Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) (same). 9 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124 (2013) (citing Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010)). 10 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). 11 See supra note 8.

268 New York University Journal of Law & Liberty [Vol. 14:264

potential impacts on foreign affairs that would follow from allowing liability for foreign corporations under the ATS.12 They did not join parts of the plurality opinion that would be dispositive to American corporations as well, namely: those arguing that international law governed the question and did not provide for corporate liability, and that looking for guidance to analogous statutes—in this case the Torture Victim Protection Act (TVPA), which does not allow corporate liability—was appropriate. Post-Jesner, lower courts have continued to split on American corporations’ liability under the ATS and have adopted differing interpretations of both Jesner’s relevance and its doctrinal takeaways.13 Though much has been written generally on the ATS and corporate liability, this Note’s topic of the ATS and reasoning by analogy to other statutes has been under-addressed by scholarly literature and left unresolved by the courts. 14 Jesner revealed a fractured Court on just this issue. Justice Kennedy, writing for the plurality, saw the TVPA not allowing corporate liability as “all but dispositive” to the issue under the ATS and dismissed the Anti- Terrorism Act (ATA)15 (which allows corporate liability) as an inapt

12 Because cases tended to focus on corporations aiding and abetting foreign governments, there is a strong incentive for foreign governments “whose conduct was implicitly being challenged by such lawsuits” to protest ATS jurisdiction. Julian G. Ku, The Third Wave: The Alien Tort Statute and the War on Terrorism, 19 EMORY INT’L L. REV. 205, 210 (2005). 13 Compare Doe v. Exxon Mobil Corp., 391 F. Supp. 3d 76 (D.D.C. 2019) (holding that American corporations cannot be liable under the ATS), with Estate of Alvarez v. Johns Hopkins, 373 F. Supp. 3d 639 (D. Md. 2019) (allowing ATS suit against American corporation), and Al Shimari v. CACI Premier Tech., Inc., 320 F. Supp. 3d 781 (E.D. Va. 2018) (same). 14 See, e.g., Philip Mariani, Note, Assessing the Proper Relationship Between the Alien Tort Statute and the Torture Victim Protection Act, 156 U. PENN. L. REV. 1383, 1385 (2008) (“The nature of this relationship has emerged as one of many uncertainties that federal courts have had to address . . . largely without assistance from Congress or the Supreme Court.”). 15 The ATA was enacted in 1990, one year prior to the TVPA. 18 U.S.C. § 2331. It creates a private right of action by which “[a]ny national of the United States injured in his or her person, property, or business for by reasons of an act of international terrorism . . . may sue therefor in

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 269

analogy because it only provides a remedy to American nationals and not to aliens. 16 Justices Alito and Gorsuch, who each issued concurrences, did not join this section or address statutory analogy themselves. In dissent, Justice Sotomayor, joined by Justices Breyer, Ginsburg, and Kagan, saw the ATS and TVPA as “related but distinct statutes that coexist independently,”17 and argued that the ATA was a more apt analogy because (1) its legislative history shows it was intended to give Americans remedies that already existed for aliens under the ATS and (2) Jesner was a terrorism, not torture, claim.18 Two other considerations make this Note particularly significant and timely. First, the significance of the relationship between these statutes and the appropriateness of reasoning by analogy between them is accentuated when the focus is solely on American corporations—as opposed to on foreign corporations—because concerns regarding extraterritoriality and foreign relations consequences are diminished or sidelined. 19 Second, further examination of this issue is particularly timely due to the ascension of Justice Kavanaugh, a former law clerk to Justice Kennedy,20 to the

any appropriate district court . . . .” § 2333(a). “Person” is defined by cross-reference to 1 U.S.C. § 1, which expressly states that the term includes corporations. Cases against corporations, particularly financial institutions, are increasingly common under the ATA. See, e.g., Michael M. Wiseman, Anti-Terrorism Act Liability for Financial Institutions, HARV. L. SCH. FORUM ON CORP. GOV. & FIN. REG. (Mar. 16, 2013), https://corpgov.law.harvard.edu/2013/03/16/anti-terrorism-act-liability-for-financial- institutions/. 16 The plurality opinion mentions that the TVPA was “codified as a note following the ATS” and refers to the TVPA as the only congressionally-created cause of action “under the ATS.” Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, at 1397, 1429–30 (plurality opinion). 17 Id. at 1434 (Sotomayor, J., dissenting). 18 Id. 19 See generally Estate of Alvarez v. Johns Hopkins Univ., 373 F. Supp. 3d 639, 644–46 (emphasizing that Justice Alito and Justice Gorsuch in Jesner both focused on foreign affairs aspects in their concurrences). 20 See, e.g., Pat Ralph, Trump’s Private Meeting with Anthony Kennedy Reportedly Helped Him Focus on Brett Kavanaugh as a Replacement, BUS. INSIDER (July 10, 2018),

270 New York University Journal of Law & Liberty [Vol. 14:264

Supreme Court. Then-Judge Kavanaugh’s dissenting opinion on the D.C. Circuit in Doe v. Exxon Mobil Corp. was cited frequently and favorably by a D.C. District Court judge last year in refusing to extend liability to American corporations following Jesner. 21 Like Justice Kennedy in Jesner, then-Judge Kavanaugh found corporate liability to not be a customary international law norm. 22 Interestingly, then-Judge Kavanaugh expressly declined to extend the logic of the TVPA to the ATS for offenses outside of torture and extrajudicial killing—as opposed to terrorism, which was the underlying offense in Jesner.23 As such, Justice Kavanaugh’s view on the TVPA would seem to align with the Jesner dissent on one point: a norm-by-norm approach to corporate liability. 24 Given Justice Kavanaugh’s seeming agreement with Justice Kennedy on other points, their opinions’ divergence regarding the TVPA-ATS relationship seems all the more significant. Indeed, a limited endorsement of norm-by-norm analysis of congressional intent from analogous statutes would now seem to command four votes on the Court.25 This raises the question whether corporate liability under

https://www.businessinsider.com/trump-decision-nominate-brett-kavanaugh-kennedy-2018-7 (“Even though he was considering other judges . . . Trump was zeroed in on Kavanaugh, who was Kennedy's former law clerk.”). 21 See, e.g., Doe v. Exxon Mobil Corp., 391 F. Supp. 3d 76 (D.D.C. 2019) (citing Doe v. Exxon Mobil Corp., 654 F.3d 11, 87 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)). 22 Exxon, 654 F.3d at 72 (Kavanaugh, J., dissenting). 23 Id. at 87 (Kavanaugh, J., dissenting) (“To be clear, the TVPA does not alter or affect the contours of ATS suits based on customary international law norms other than torture and extrajudicial killing. The TVPA was not intended to generally preempt or displace all ATS suits.”) (citations omitted), vacated, 527 F. App'x 7 (D.C. Cir. 2013). 24 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, at 1433 (Sotomayor, J., dissenting) (arguing differing congressional decisions on corporate liability in the ATS and TVPA are “strong evidence that Congress exercises its judgment as to the appropriateness of corporate liability on a norm-by-norm basis, and that courts should do the same when considering whether to permit causes of action against corporations for law-of-nations violations under the ATS”). 25 Prior to Justice Ginsburg’s passing, this position seemed to control five votes on the Court. With Judge Amy Coney Barrett likely joining the Court, the calculus has changed. While

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 271

the ATS could depend upon which specific customary international law norm is at issue. Finally, the Court has granted certiorari in Doe v. Nestlé, which directly presents the question Jesner failed to resolve: whether Americans corporations may be sued under the ATS.26 The Solicitor General of the United States—in his May 2020 brief advocating the Court grant certiorari—for the first time adopted this statutory analogy argument, quoting the Jesner plurality.27 Jesner thus provides an ideal entry point to discussion of several issues under-addressed in current literature. In fact, this Note is the first to directly and systematically examine the practice of looking to analogous statutes to import limitations on judicially-implied rights of action in context of the ATS. Part I, through close reading of ATS caselaw, demonstrates that the practice fails to find justification in Sosa, is discouraged by the legislative history of the TVPA and the Court’s decision in Mohamad v. Palestinian Authority, 28 and has elicited differing responses from lower courts post-Jesner. Part II argues that statutory analogy as applied in Jesner finds justification neither in the cases that the Jesner plurality cites in support of it, nor

Barrett does not seem to have publicly written or opined on the ATS, her work has been cited in literature on the ATS. See, e.g., Anthony J. Bellia Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, 101 VA. L. REV. 609, 614 n.25 (2015) (citing Amy Coney Barrett, Procedural Common Law, 94 VA. L. REV. 813, 864–76 (2008)). More generally, Barrett seems very corporate-friendly. See, e.g., Trump’s Supreme Court Nominee Has Sided with Corporations over People 76% of the Time During Her Tenure on the 7th Circuit Court of Appeals, ACCOUNTABLE.US (Sept. 24, 2020), https://www.accountable.us/wp-content/uploads/2020/09/2020-09-28-Amy-Coney- Barrett-Sides-With-Corporations-76-of-the-Time.pdf. 26 See Doe v. Nestlé, S.A., 929 F.3d 623 (9th Cir. 2018), cert. granted 2020 WL 3568678 (U.S. July 2, 2020). The case was consolidated with that of another defendant in the same litigation, Cargill Inc. See Cargill, Inc. v. Doe, 2020 WL 3578679 (U.S. July 2, 2020) (granting certiorari and consolidating with Doe v. Nestlé). 27 Brief for the United States as Amicus Curiae at 10–11, Nestlé USA, Inc., v. Doe, No. 19- 416, and Cargill, Inc., v. Doe, Nos. 19-453 (May 26, 2020) (quoting Jesner, 138 S.Ct. at 1403– 04 (plurality opinion)). See infra notes 167168 (tracking changes in the Solicitor General’s position from Kiobel to Nestlé). 28 566 U.S. 449 (2012).

272 New York University Journal of Law & Liberty [Vol. 14:264

in arguably the clearest example of statutory analogy (i.e., borrowing of statutes of limitations), nor in statutory interpretation literature more broadly. In fact, I demonstrate that these considerations raise serious doubts regarding the appropriateness of the practice as employed by Justice Kennedy and then-Judge Kavanaugh. Part III turns to the implications of using this practice in ATS context. I argue that the practice is certainly not viable in the manner employed in Jesner, that its foundations remain dubious when employed on a norm-by-norm basis for the ATS, and, ultimately, that refrain from its exercise would be most appropriate in ATS context. In sum, I argue that in this context the practice tends to obscure rather than clarify, and to expand judicial discretion rather than constrain it. As such, federal courts continuing to hear ATS corporate liability claims—particularly the Supreme Court in Nestlé—would be best advised to focus more directly on better-established rules of decision under the ATS—particularly, foreign affairs consequences—or on resolving more foundational interpretive uncertainties,29 rather than attempting inter-statutory analogy given Congress’s limited legislative activity in the area, lack of clear direction regarding corporate liability from that limited activity, and the gross temporal disparity between the enactment of the ATS and that of related statutes.

I. CORPORATE LIABILITY UNDER THE ALIEN TORT STATUTE Since the ATS’ re-emergence, its proper interpretation has been hotly contested and corporate liability under the ATS has been a particularly divisive issue. As of 2012 there had been 180 ATS cases against corporate defendants, 155 (85%) of which were filed since

29 See infra text accompanying note 74 (noting several fundamental questions that circuits have split on and that Jesner did not resolve).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 273

1993, and 136 (76%) since 2000.30 Some have characterized the ATS as an “awakening monster,” 31 and argued that allowing ATS claims against corporations risks consequences including serious adverse impacts on foreign policy, negative effects on the war on terror, and denying less-developed-countries meaningful access to global markets. 32 Others have argued that these concerns are vastly overstated,33 and have highlighted positive functions of the ATS such as filling moral leadership, individual accountability, and distributive justice gaps. 34 Law and economics scholarship has likewise been divided,35 but has confirmed the economic significance of certain Supreme Court decisions to foreign corporations doing business under human rights violation-prone regimes.36 Claims have been brought under the ATS against corporations for a wide variety of human rights abuses.37 As international law is

30 Jonathan Drimmer, Resurrection Ecology and the Evolution of the Corporate Alien Tort Movement, 43 GEO. J. INT'L L. 989, 996 (2012). 31 GARRY CLYDE HUFBAUER & NICHOLAS K. MITROKOSTAS, AWAKENING MONSTER: THE ALIEN TORT STATUTE OF 1789 (2003). 32 Id. 33 See, e.g., Harold Hongju Koh, Separating Myth From Reality About Corporate Responsibility Litigation, 7 J. INT’L ECON. L. 263, 264 (2004) (seeking to dispel four “myths” about the ATS in response to “how much overreaction and hysteria have developed regarding corporate responsibility litigation in U.S. courts for environmental injury and human rights abuses under the Alien Tort Statute.”). 34 See Chimène Keitner, Functions of ATS Litigation, 43 GEO J. INT’L L. 1015, 1015–16 (2012). 35 Compare Alan O. Sykes, Corporate Liability for Extraterritorial Torts Under the Alien Tort Statute and Beyond: An Economic Analysis, 100 GEO. L.J. 2161, 2164 (2012) (expressing concerns regarding the effects of corporate liability under certain circumstances), with Chimène Keitner, Optimizing Liability for Extraterritorial Torts: A Response to Professor Sykes, 100 GEO. L.J. 2211, 2213–16 (2012) (responding to “failed deterrence,” “competitive disadvantage,” and “inefficient compensation” critiques embedded in Sykes’ work). 36 See Darin Christensen & David Hausman, Measuring the Economic Effect of Alien Tort Statute Liability, 32 J.L. ECON. & ORG. 794 (2016) (showing that Kiobel created benefits for foreign corporations but did not affect American corporations through analysis of cumulative abnormal returns in period following the ruling). 37 See, e.g., Aldana v. Fresh Del Monte Produce, Inc. 305 F. Supp. 2d 1285 (S.D. Fla. 2003) (rejecting claim against Guatemalan banana plantation for torture and other human rights

274 New York University Journal of Law & Liberty [Vol. 14:264

generally focused upon state behavior, most of the cases embraced the theory that corporations “aided and abetted foreign governments in their violations of international human rights law.”38 Looking at ATS cases in federal courts the past couple years alone, claims have been brought against Cisco for its alleged role in facilitating the Chinese government’s religious persecution of the Falun Gong,39 a U.S. private military contractor for torture and other human rights violations at Abu Ghraib, 40 Exxon Mobil for alleged torture, extrajudicial killing, and cruel, inhuman, and degrading treatment related to a natural gas facility in Indonesia,41 and Johns Hopkins University for its alleged role in non-consensual human experimentation in Guatemala in which plaintiffs were infected with syphilis.42 Corporate liability being available—rather than having to litigate against individual corporate officers—is desirable to ATS plaintiffs for a variety of reasons. In several cases, including the paradigmatic Filártiga case, individuals have lacked obtainable assets to pay damages awards.43 Though true that the defendant in Filártiga was

violations); Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002) (declining to adjudicate ATS claims against oil company stemming from environmental damage and personal injuries in Guatemala on forum non conveniens grounds); Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362 (E.D. La. 1997) (dismissing plaintiff’s ATS claim against American corporation that owned mines in Indonesia for human rights abuses and cultural genocide due to lack of standing). 38 Ku, supra note 12, at 209 (discussing transition from first wave of ATS claims against individuals to second wave of claims against corporations). 39 See Supplemental Brief of Defendants-Appellees at 3–15, Doe I v. Cisco Systems, Inc., No. 15-16909 (9th Cir. Sept. 24, 2018) (arguing Jesner’s reasoning supported dismissal of a claim against an American corporation). 40 Al Shimari v. CACI Premier Tech., Inc., 320 F. Supp. 3d 781 (E.D. Va. 2018). 41 Doe v. Exxon Mobil Corp., 391 F. Supp. 3d 76 (D.D.C. 2019). 42 Estate of Alvarez v. Johns Hopkins Univ. Sch. of Med., 373 F. Supp. 3d 639 (D. Md. 2019), motion to certify appeal granted, 2019 WL 1779339 (D. Md. Apr. 23, 2019). 43 See Keitner, supra note 35, at 2216 (“ATS cases against individual human rights violators have been particularly inefficient . . . because many of the damages awards have been unenforceable due to lack of obtainable assets.” (citing Filártiga v. Peña-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984))).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 275

not a corporate officer, corporate assets are most always more extensive than those of individual officers44 and may also be easier to reach in American courts.45 More broadly, it may not be clear which corporate officers were responsible for particular misconduct, and there may be barriers to piercing the corporate veil to discover such information. Choice of law issues may also pose a major barrier to litigating against individual corporate officers, directors, and employees.46 Before delving into more theoretical analysis of the practice of looking to analogous statutes in the ATS context, it is necessary to elaborate that particular and peculiar context. Thus, Section I.A. sets out the ATS’ enactment and rediscovery. And, through close reading of the Court’s decision in Sosa, it lays the foundation for my critique of employing statutory analogy in this context. Section I.B. identifies, compares, and critiques circuits’ differing approaches to the corporate liability question both at Sosa Step One and Step Two. Further, it critiques then-Judge Kavanaugh’s questionable interpretations of Sosa in his effort to justify using statutory analogy, and highlights reasoning from circuit opinions that problematizes ATS-TVPA analogy. Finally, Section I.C raises concerns regarding

44 See generally Jed S. Rakoff, The Cure for Corporate Wrongdoing: Class Actions vs. Individual Prosecutions, N.Y. REV. BOOKS (Nov. 19, 2015), https://www.nybooks.com/articles/2015/11/19/cure-corporate-wrongdoing-class-actions/ (“[A] few executives might also be named as defendants, but the settlement with them, if any, will typically be limited by the limits on their company-paid insurance.”). 45 Ku, supra note 12, at 209 (“Not surprisingly, U.S. and foreign corporations proved more attractive defendants than foreign government officials, primarily because corporations had substantial assets within the jurisdiction of U.S. federal courts.”). 46 See Tyler Becker, Note, The Liability of Corporate Directors, Officers, and Employees Under the Alien Tort Statute After Jesner v. Arab Bank, PLC, 120 COLUM. L. REV. 91, 94 (2020) (“[C]hoice of law may prove outcome determinative on the ancillary issues in ATS cases against corporate officers, and . . . current ATS jurisprudence provides courts little guidance on how to resolve choice of law issues.”); cf. Isaac Ramsey, Hidden Renvoi: The Search for Corporate Liability in Alien Tort Statute Litigation, 107 CAL. L. REV. 2071 (2019) (discussing ATS choice of law issues more broadly).

276 New York University Journal of Law & Liberty [Vol. 14:264

the Jesner plurality’s use of statutory analogy and emphasizes that this remains a pressing issue through analysis of lower courts’ differing treatment of American corporations’ liability and statutory analogy post-Jesner.

A. EARLY DAYS, REDISCOVERY, AND ELABORATION Passed as part of the Judiciary Act of 1789, the 33-word ATS provides: “The 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.”47 The reference to the “law of nations” is generally understood to mean customary international law. 48 The statutory text’s brevity and “deceptive simplicity”49 belie the extraordinary nature of the ATS, which has been described as unique in both American law and among other legal systems around the world.50 Legislative history regarding the ATS is scarce, but it seems that a key purpose was to provide aliens

47 28 U.S.C. § 1350 (2018). 48 14A WRIGHT & MILLER, supra note 7, at § 3661.1 (noting as well that customary international law refers to those norms of international law that are sufficiently grounded in state practice and backed by a sense of legal obligation—i.e. opinio juris). See generally David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. REV. 932 (2010) (describing the strategic significance of adherence to treaties and the law of nations to early post-1776 America). 49 BREYER, supra note 6, at 135; see also Sarei v. Rio Tinto, PLC, 671 F.3d 736, 780 (9th Cir. 2011) (McKeown, J., concurring in part and dissenting in part) (“The [ATS], albeit short on words, is a perplexing statute. Given the ink spilled in many judicial opinions, concurrences, and dissents, as well as scholarly articles, this brevity has not netted clarity.”). 50 See STEPHEN P. MULLIGAN, CONGRESSIONAL RESEARCH SERVICE, THE ALIEN TORT STATUTE (ATS): A PRIMER i (2018) (“[T]he [ATS] has been described as a provision unlike any other in American law and unknown to any other legal system in the world.” (internal quotations omitted)).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 277

with access to American courts and thus diminish potential foreign affairs impact stemming from the mistreatment of aliens.51 Only in the last 40 years has the ATS come to occupy a place of prominence in transnational human rights litigation. As Curtis A. Bradley notes:

Although the Alien Tort Statute has been in existence for over two hundred years, it was an insignificant source of federal court jurisdiction during most of its history. Before 1980, jurisdiction had been upheld under this Statute in only two reported cases, one in 1795 and the other in 1961. The Statute was unsuccessfully invoked by plaintiffs as a basis for jurisdiction in only a modest number of additional reported cases.52 This situation persisted until the Second Circuit, in Filártiga v. Peña-Irala, held that the ATS permitted aliens to bring claims for violations of customary international law as it had evolved to date.53 This constituted a much broader range of norms than just the three categories of norms that courts have recognized were part of the law of nations at the time of the ATS’ enactment: (1) offenses against ambassadors, (2) violations of safe conduct, and (3) prize captures and piracy.54 Though the D.C. Circuit two years later in Tel-Oren v.

51 See id. (“The ATS has its historical roots in founding-era efforts to give the federal government supremacy over the nation’s power of foreign affairs and to avoid international conflict arising from disputes about the treatment of aliens in the United States.”). See generally Golove & Hulsebosch, supra note 48, at 999 n.279 (discussing attack on a French diplomat as a catalyst for passage of the ATS). 52 Curtis A. Bradley, The Alien Tort Statute and Article III, 42 VA. J. INT’L L. 587, 588 & n.4 (2002) (first citing Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795); and then citing Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961)). 53 630 F.2d 876 (2d Cir. 1980). 54 See 14A WRIGHT & MILLER, supra note 7, at § 3661.1 (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004)).

278 New York University Journal of Law & Liberty [Vol. 14:264

Libyan Arab Republic rejected the Second Circuit’s approach,55 interest in the ATS had been stoked and that interest has persisted.56 The Supreme Court did not weigh in on the ATS until 2004 in Sosa v. Alvarez-Machain. 57 As the Court in Sosa aptly noted: “a consensus understanding of what Congress intended [in enacting the ATS] has proven elusive.”58 Nonetheless, drawing from the history of the enactment of the Judiciary Act of 1789 and from “contemporaneous cases and legal materials,” 59 the Court in Sosa distilled two key points. First, Congress had not intended that the ATS be a purely jurisdictional grant “to be placed on the shelf” until legislatures created causes of action under it, but rather had “intended [it] to have practical effect the moment it became law,” because “district courts would recognize private causes of action for . . . violation[s] of the law of nations.”60 And second, Congress had intended to furnish jurisdiction for a “relatively modest set of actions

55 726 F.2d 774 (D.C. Cir. 1984) (per curiam) (affirming the district court’s dismissal of an ATS claim by Israeli citizens against Libya, the Palestine Liberation Organization, and other organizations, based on torts including terrorism, torture, and genocide, with each of the three judges issuing a separate concurrence). 56 See generally Bradford R. Clark, Tel-Oren, Filártiga, and the Meaning of the Alien Tort Statute, 80 U. CHI. L. REV. DIALOGUE 177 (2013) (discussing the differing approaches taken by Filártiga and by the three separate opinions in Tel-Oren). 57 542 U.S. 692 (2004). 58 Id. at 718–19. 59 Id. at 720. 60 Id. at 719, 724; see also id. at 719 (“The anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to have a practical effect. . . . There is too much in the historical record to believe that Congress would have enacted the ATS only to leave it lying fallow indefinitely.”).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 279

alleging violations of the law of nations.”61 Sosa then held that courts should exercise “great caution” in creating rights of action.62 Sosa is most-often construed as setting out a two-step inquiry to determine whether a cause of action exists for the allegedly violated customary international norm. Step One is essentially the inquiry mentioned above: whether the norm is sufficiently widely accepted to form customary international law and is defined with “specificity” comparable to the law of nations violations extant at the time of the ATS’ enactment.63 Step Two then inquires into whether Congress has “shut the door,” either “explicitly[] or implicitly,” to the norm at issue.64 Two more nuanced aspects of Sosa play integral roles in disputes over the appropriateness of statutory analogy under the ATS regarding corporate liability—the first at Step One and the latter at Step Two. The first is Sosa footnote 20’s statement, in discussing whether a norm is sufficiently definite, that “a related consideration is whether international law extends the scope of liability for a

61 Id. at 719. This initial modest set—i.e., violation of safe conducts, piracy, and infringement upon rights of ambassadors—has been colloquially labelled by some as the “Blackstone three.” See, e.g., Doe v. Exxon, 654 F.3d 11, 73 n.2 (Kavanaugh, J., dissenting) (discussing “what one might call the ‘Blackstone three’” and adopting this terminology throughout opinion). 62 Sosa, 542 U.S. at 726–28. The Court articulated a variety of reasons for this caution, including: changing conceptions of the common law; reconceptualization of federal courts role in crafting common law—particularly the Court’s rejection of federal “general” common law in Erie Railroad Company v. Tompkins, 304 U.S. 604 (1938); prior precedent instructing that creation of private rights of action is most of the time best left to legislative judgment; potential foreign relations consequences; and the lack of a clear congressional mandate to “seek out and define” new ATS causes of action. See id. (citing Henry Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N.Y.U. L. REV. 383, 405–22 (1964)). 63 Sosa, 542 U.S. at 732 (“[W]e 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 ATS] was enacted.”); see also Virginia Monken Gomez, The Sosa Standard: What Does It Mean for Future ATS Litigation? 33 PEPP. L. REV. 469, 479 (2006); Exxon, 654 F.3d at 86 (Kavanaugh, J., dissenting) (“The Court insisted that the Judiciary recognize only those customary international law norms that are sufficiently definite and widely accepted.”). 64 Sosa, 542 U.S. at 731.

280 New York University Journal of Law & Liberty [Vol. 14:264

violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”65 In Flomo v. Firestone Natural Rubber Co., LLC, Judge Posner bitingly summarized the state of debate: “The issue of corporate liability under the Alien Tort Statute seems to have been left open in an enigmatic footnote in Sosa, (but since it's a Supreme Court footnote, the parties haggle over its meaning, albeit to no avail).” 66 This “haggl[ing]” generally manifests as follows: Those arguing against corporate liability suggest Sosa requires that international law specifically extend liability for the particular norm at issue to corporations for them to be held liable, while plaintiffs assert Sosa solely requires a discussion of whether the norm extends to private actors generally, rather than to corporations specifically. The second relevant aspect of Sosa stems from Part IV of Justice Souter’s majority opinion,67 which identified a “general practice of seeking legislative guidance before exercising innovative authority over substantive law.” 68 Both Justice Kennedy and then-Judge Kavanaugh cited precisely this portion of Sosa to justify looking to analogous statutes.69 Notably, however, Part IV continues:

While we agree with Justice Scalia to the point that we would welcome any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations, nothing Congress has done is a reason for us to shut the door to the law of nations entirely. It is enough to say

65 Id. at 767 n.20. 66 Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1017 (7th Cir. 2011). 67 Though not unanimous as Parts I and III were, Part IV was still joined by all the Justices aside from Scalia, Thomas and Chief Justice Rehnquist, and is thus binding as the opinion of the Court. See Sosa, 542 U.S. at 695–96. 68 Id. at 726. 69 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018) (plurality opinion); Doe v. Exxon Mobil Corp., 654 F.3d 11, 73 (D.C. Cir. 2011) (Kavanaugh, J. dissenting).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 281

that Congress may do that at any time (explicitly, or implicitly by treaties or statutes that occupy the field), just as it may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such.70 Close reading of Sosa thus seems to suggest that if Congress has not explicitly shut the door to a norm in international law (or indeed to customary international law across-the-board), the sole way it may implicitly do so is by “occupy[ing] the field.”71 This portion of the judgment’s binding effect cannot be placed in doubt. Justice Ginsburg’s concurrence solely concerned the Federal Tort Claim Act aspects of the case. 72 And, though Justice Breyer’s concurrence phrased the same concept in slightly different language,73 because Part IV would still be backed by a majority of the Court even without Justice Breyer’s vote, Justice Souter’s articulation in the majority opinion remains controlling. Though the Court could, of course, alter the standard articulated in Sosa, this distinction is nonetheless significant for lower courts bound to follow Sosa and for those

70 Sosa, 542 U.S. at 731 (emphasis added). 71 Id. Textually from Sosa, an argument could be made that its discussion of field preemption should be cabined to determining whether Congress had “shut the door to the law of nations entirely.” This is unpersuasive, however, given that the next sentence, by usage of “just as it may,” makes clear the same analysis can apply on a norm-by-norm analysis. See supra text accompanying note 70. 72 Sosa, 542 U.S. at 751 (Ginsburg, J., concurring). 73 Justice Breyer states his agreement with the Court’s statement that “Congress can make clear that courts should not recognize any such norm, through a direct or indirect command or by occupying the field.” Id. at 761 (Breyer, J., concurring). Justice Breyer’s usage of “direct or indirect” instead of “explicit[] or implicit[]” frustrates comparison. Is “direct or indirect command” the same as “explicitly” in the majority? Or does Justice Breyer’s formulation imply there are in fact three options: direct / explicit command, indirect / implied command, and third occupying the field? Perhaps, given that Justice Breyer states his agreement with the majority on these points, it is simply an unintended difference in phrasing. Regardless, the majority’s formulation is binding.

282 New York University Journal of Law & Liberty [Vol. 14:264

Justices seeking to legitimize their arguments by claiming faithfulness to Sosa.

B. CORPORATE LIABILITY COMES BEFORE THE COURTS With the surge of ATS cases against corporations beginning in the early 1990s, courts were forced to address the issue of corporate liability. It took until 2010 for a circuit split to emerge on this issue because ATS cases often dragged on for extended periods of time. Once circuit courts began to address the issue, their opinions quickly diverged on several key questions: (1) whether international law provided the rule of decision or whether corporate liability was a matter of procedure rather than substance, and thus domestic law provided the rule of decision, (2) if international law did govern, whether analysis should focus on whether international law extended prohibition of the substantive norm violation alleged (e.g., genocide, torture etc.) to corporations specifically, or whether corporate liability should be examined in itself across-the-board as a customary international law norm, and, (3) how Sosa’s instruction to seek legislative guidance should be interpreted.74 This Section elaborates the uncertain, sharply divided backdrop against which Jesner was decided, laying the foundation for Section I.C’s analysis of the Jesner plurality’s use of statutory analogy. Section I.B.1 discusses Kiobel, which made the Second Circuit the first to reject corporate liability under the ATS (and did so without any use of statutory analogy). Section I.B.2 discusses the D.C. Circuit’s decision allowing corporate liability in Exxon and articulates serious concerns regarding how then-Judge Kavanaugh’s influential dissent—which first employed ATS-TVPA statutory analogy—departed from Sosa despite claiming fidelity to it. Finally, Section I.B.3 discusses the

74 See, e.g., infra text accompanying notes 76, 84, 88, 116, 117, 123, and 124.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 283

Ninth and Seventh Circuits’ approaches to corporate liability under the ATS, highlighting persuasive reasoning that casts doubt on ATS- TVPA analogy.

1. Kiobel in the Second Circuit The Second Circuit was the first to reject corporate liability under the ATS in Kiobel v. Royal Dutch Petroleum Co.,75 a putative class action alleging that corporate defendants aided and abetted the Nigerian government’s human rights abuses against plaintiffs. Judge Cabranes’ majority opinion in Kiobel held that corporate defendants could not be held liable under the ATS. This rested upon two key findings: that international law governed the scope of liability and that corporate liability categorically did not, as of yet, comprise a norm of customary international law. The Kiobel majority concluded that “international law, and not domestic law, governs the scope of liability . . . under the ATS.”76 In support of this, the Kiobel majority cited to a “related consideration”77 in determining whether a norm is “sufficiently definite,” 78 which Sosa footnote 20 indicated was a question of “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as

75 621 F.3d 111 (2d Cir. 2010). Prior to Kiobel, the Eleventh Circuit had concluded in a string of three decisions that the ATS allowed corporate liability for torture claims. See Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009), abrogated by Mohamad v. Palestinian Auth., 566 U.S. 449 (2012); Romero v. Drummond Co., 552 F.3d 1303, 1311 (11th Cir. 2008); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) (allowing torture claim under ATA and TVPA against corporate defendant). Given that these cases were largely self- referential, did not engage in much substantive discussion of ATS interpretation, and rested in part upon the holding that the TVPA allowed corporate liability (which was abrogated by Mohamad), I will not address them in detail. 76 Kiobel, 621 F.3d at 126. 77 Sosa, 542 U.S. at 732 n.20. 78 Id. at 732.

284 New York University Journal of Law & Liberty [Vol. 14:264

a corporation or individual.”79 The Kiobel majority also noted Justice Breyer’s agreement with this inquiry in his concurring opinion in Sosa.80 Additionally, the majority found persuasive that the Supreme Court and Second Circuit had previously “looked to international law to determine whether state officials, private individuals, and aiders and abettors can be held liable under the ATS.”81 The majority then relied upon analysis of the jurisdiction and practices of international tribunals and of international treaties to conclude that customary international law did not extend liability to corporations. 82 Second, the Kiobel majority analyzed corporate liability as a norm in itself and held that corporate defendants could not be held liable under the ATS based on their finding that “corporate liability has not attained a discernable, much less universal, acceptance among nations of the world in their relations.”83 Judge Leval, concurring in judgment only, would have dismissed the case for failing to plead the requisite mens rea for aiding and abetting liability under Second Circuit precedent, but disagreed with the majority that customary international law provided the rules of decision with regard to corporate liability.84 Presaging the approach of the Seventh Circuit in Flomo, Judge Leval found it persuasive that, while no rule in favor of corporate liability was clear

79 Kiobel, 621 F.3d at 127 (quoting Sosa, 542 U.S. at 732 n.20). 80 Id. at 127–28; see also Sosa, 542 U.S. at 760–61 (Breyer, J., concurring) (discussing conditions including “the norm . . . extending liability to the type of perpetrator (e.g., a private actor) the plaintiff seeks to sue” and stating he “believe[s] all of these conditions are important.”). 81 Kiobel, 621 F.3d at 130 (internal citations omitted). 82 Id. at 132–45. 83 Id. at 149. 84 Id. at 153–54; id. at 196 (“The majority’s rule conflicts with two centuries of federal precedent on the ATS, and deals a blow to the efforts of international law to protect human rights.”). Circuits remain split on the appropriate standard for aiding and abetting liability under the ATS. See generally Srish Khakurel, The Circuit Split on Mens Rea for Aiding and Abetting Liability under the Alien Tort Statute, 59 B.C. L. REV. 2953 (2018).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 285

in customary international law, neither did any “court decisions” nor “other legal precedents” provide a rule against corporate liability.85 Judge Leval thus concluded that international law “leaves issues of private civil liability to individual States,” and that under Sosa the “court has jurisdiction to hear the case and to award compensatory damages against the tortfeasor.”86

2. The D.C. Circuit Addresses the Practice: Doe v. Exxon Several months following Kiobel, the D.C. Circuit took a different approach in Doe v. Exxon Mobil Corporation, which involved claims by plaintiffs from Indonesia alleging human rights abuses committed by Indonesian military personnel hired by defendants.87 Writing for the majority in Exxon, Judge Rogers tacked the same course as Judge Leval, concluding that corporations were not immune from liability under the ATS because federal common law rather than international law provided the rules of decision and corporate liability for torts was a widely-established norm.88 With regard to Sosa, the majority in Exxon cited it for the “general practice … to look for legislative guidance before exercising innovative authority over substantive law.”89 But rather than merely identifying what the most analogous statute is and adopting the approach taken in that statute, the majority in Exxon instead seemed to let the text of Sosa more directly

85 Kiobel, 621 F.3d at 161 (Leval, J., concurring) (“No court has ever dismissed a civil suit against a corporation, which alleged a violation of the laws of nations, on the ground that juridical entities have no legal responsibility or liability under that law. No court has ever discussed such a rule with even vaguely implied approval.”). Notably, the Canadian Supreme Court recently articulated essentially the same position as Judge Leval in Nevsun Resources Ltd. v. Araya., stating that the position that liability under international law does not extend to corporations “misconceives modern international law,” which has developed beyond a solely interstate character. 2020 SCC 5, paras. 104–13. 86 Kiobel, 621 F.3d at 153 (Leval, J., concurring). 87 654 F.3d 11 (D.C. Cir. 2011). 88 Id. at 51 (citing Kiobel, 621 F.3d at 166 (Leval, J., concurring)). 89 Id. at 56 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 726).

286 New York University Journal of Law & Liberty [Vol. 14:264

guide their analysis. The majority looked at the TVPA in its entirety—rather than merely as an analogy—and concluded it gives only “slight” guidance by virtue of its sparse legislative history concerning corporate liability and Sosa’s description of the TVPA as “supplementing” rather than replacing the ATS.90 In dissent, then-Judge Kavanaugh would have dismissed the case based on his arguments that the ATS does not apply extraterritorially, does not allow aiding and abetting liability, and does not apply to corporations. 91 Then-Judge Kavanaugh echoed Kiobel’s conclusions that international law governed the scope of ATS claims and does not apply to corporations. 92 His innovation was to directly invoke statutory analogy to the TVPA as an additional argument in the alternative against corporate liability. In support of this analogy he asserted that in Sosa, the Court had “indicated that courts should exercise judicial restraint and interpret the open-ended language of the ATS by reference to analogous congressionally enacted causes of action.”93 Then-Judge Kavanaugh also limited the scope of analogy to the TVPA to solely affect claims under the ATS for torture and extrajudicial killing, specifically referencing the legislative history of the TVPA discussed in Sosa that made clear that it was “not intended to generally preempt or displace all ATS suits.”94 Thus, rather than characterizing claims under the ATS uniformly and finding that the TVPA comprises the most apt analogy, then-Judge Kavanaugh adopted a novel norm-by-norm approach to determining

90 Id. 91 Id. at 71–91 (Kavanaugh, J., dissenting). 92 Id. at 82–83 (Kavanaugh, J., dissenting). In fact, then-Judge Kavanaugh sought to require that customary international law not just recognize corporate liability as a norm generally, nor just that it allow corporate liability for the norm at issue, but that it specifically recognize corporate liability for aiding and abetting the norm at issue. See infra note 250. 93 Exxon, 654 F.3d at 86 (Kavanaugh, J., dissenting) (citing Sosa, 542 U.S. at 731). 94 Id. at 87 (Kavanaugh J., dissenting) (citing Sosa, 542 U.S. at 728).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 287

Congressional intent, stating that “the TVPA does reflect a specific congressional decision about when and under what circumstances U.S. citizens (and aliens) may sue for torture and extrajudicial killing.”95 Notably, then-Judge Kavanaugh offered no support for the proposition that the TVPA reflects a congressional judgment concerning aliens as well as citizens beyond his assertions that a difference between aliens and U.S. citizens on this point would be “odd and incongruous” and that Congress would intend such is “implausible,” and the argument that this practice is a natural extension of the “direction” set in Sosa.96 Several weaknesses in then-Judge Kavanaugh’s reasoning merit elaboration to set the stage before proceeding to Jesner. As a matter of faithfulness to precedent, citing Sosa for the practice of looking to “analogous” statutes is a significant stretch, if not a distortion. The single page in Sosa that then-Judge Kavanaugh cites for this proposition begins by reaffirming the power and capacity of courts to identify international norms enforceable under the ATS, and then discusses the majority’s agreement with Justice Scalia that they would “welcome any congressional guidance in exercising its jurisdiction.” 97 “Analogy,” “analogous,” or any other variation appear neither on the cited page nor anywhere else in reference to congressional guidance. Indeed, as discussed in Section I.A., the portion of Sosa which then-Judge Kavanaugh cited in support of looking to “analogous” statutes solely stated that Congress may “‘shut the door to the law of nations’ either ‘explicitly, or implicitly

95 Id. 96 Id. 97 See Rice v. Santa Fe. Elevator Corp., 331 U.S. 218, 330 (1947) (holding that Congress could preempt state law by “legislat[ing] . . . in a field which the States have traditionally occupied.”); see also JAY B. SYKES & NICOLE VANATKO, CONG. RESEARCH SERV., R45825, FEDERAL PREEMPTION: A LEGAL PRIMER 17 (2019) (“The Supreme Court has held that federal law preempts state law where Congress has manifested an intention that the federal government occupy an entire field of regulation.” (citing Rice, 331 U.S. at 330)).

288 New York University Journal of Law & Liberty [Vol. 14:264

by treaties or statutes that occupy the field.’”98 Explicitly voiding a customary international law norm and field preemption are both quite different from a generalized direction to seek guidance from “analogous” statutes. 99 Additionally, then-Judge Kavanaugh’s emphasis on “incongr[uity]” with other statutes 100 is inconsistent with the Court’s subsequent unanimous decision in Mohamad v. Palestinian Authority, in which the Court rejected such an argument regarding the TVPA from Petitioners (who argued that the TVPA allows corporate liability).101 The Court found that the lack of shared text with other statutes Petitioners pointed to, including the ATS, meant that “none assists in the interpretive task we face today.”102 That then-Judge Kavanaugh’s opinion adopted a norm-by-norm approach—rather than one characterizing statutes more broadly— does not mitigate the seeming liberties it took with Sosa and its inconsistency with the Court’s subsequent decision in Mohamad. Because then-Judge Kavanaugh solely adopted a norm-by-norm approach to statutory analogy, one could argue that the TVPA—by allowing both aliens and citizens to bring claims for torture and extrajudicial killing—“occup[ies] the field” for claims regarding torture and extrajudicial killing, and is thus compatible with Sosa. But then Judge-Kavanaugh does not make this argument. Rather, he adopts the language of Justice Breyer’s non-precedential concurrence

98 Exxon, 654 F.3d at 86 (Kavanaugh, J., dissenting) (citing Sosa, 542 U.S. at 731). 99 Id. 100 See supra text accompanying note 96. 101 Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012) (“We also decline petitioners' suggestion to construe the TVPA's scope of liability to conform with other federal statutes that petitioners contend provide civil remedies to victims of torture or extrajudicial killing.”). Justice Breyer issued a concurring opinion, joining the opinion in full except for one qualification not relevant to this conclusion. Id. at 449 (Breyer, J., concurring). Justice Scalia joined the opinion in full, except for an earlier section discussing the TVPA’s legislative history. Id. at 449. 102 Id. at 458 (“None of the three statutes petitioners identify employs the term ‘individual’ to describe the covered defendant . . . .”); see also id. (noting specifically of the ATS that “it offers no comparative value here”).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 289

(“direct or indirect command”) and avoids the more specific guidance from Sosa to look for whether Congress had “shut the door to the law of nations . . . implicitly by treaties or statutes that occupy the field.” 103 Then-Judge Kavanaugh’s failure to follow the Sosa majority is demonstrated by the fact that he did not in fact adopt the position that the TVPA occupies the field for torture and extrajudicial killing as several other courts have.104 A notable comparison is that the Jesner plurality effectively argued that Congress had occupied the field regarding terrorism and terrorist financing through the ATA and related statutes such that “holding banks subject to common-law liability in actions filed under the ATS” would be “inappropriate.”105 And, in relation to Mohamad, a norm-by-norm approach makes no difference. Petitioner’s argument in Mohamad, which the court unanimously rejected, specifically adopted a norm-by-norm approach by focusing on other statutes allowing the same type of

103 Sosa, 542 U.S. at 731. Then-Judge Kavanaugh quotes both the language of the Sosa majority and of Justice Breyer’s concurrence, but exclusively uses the language of Justice Breyer’s concurrence in his own framing of the issue, never mentioning “occupying the field” in his own discussion of the TVPA. See Exxon, 654 F.3d at 86 (Kavanaugh, J., dissenting) (stating “that Congress by direct or indirect command may scale back customary international law norms” and that, after showing their claim is “firmly grounded in international law, . . . [plaintiffs] also must show that Congress has not cast doubt on their asserted ATS claim by direct or indirect command.”). 104 See 14A WRIGHT & MILLER, supra note 7, § 3661.4 (“If and how the TVPA affects claims for torture and extrajudicial killing under the [ATS] is another contentious subject. One court of appeals has held that the TVPA occupies the field of claims for torture committed abroad, barring such claims from being brought under the [ATS].” (footnotes and citations omitted)); Enahoro v. Abubakar, 408 F.3d 877, 884–85 (7th Cir. 2005) (“We find that the [TVPA] does, in fact, occupy the field. If it did not it would be meaningless.”). 105 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1405 (2018) (plurality opinion); see also id. (“The [ATA] . . . is part of a comprehensive statutory and regulatory regime. . . . The detailed regulatory structures prescribed by Congress and the federal agencies . . . reflect the careful deliberation of the political branches on when, and how, banks should be held liable for the financing of terrorism.”). But see id. at 1434 (Sotomayor, J., dissenting) (“[A]n ATS suit alleging terrorism-related conduct does not ‘bypass’ or ‘displace’ any ‘statutory and regulatory structure’ any more than an ATA suit does. . . . U.S. nationals and foreign citizens may bring ATA and ATS suits in the same court, at the same time, for the same underlying conduct.” (citations omitted)).

290 New York University Journal of Law & Liberty [Vol. 14:264

remedy for the same norm as the TVPA: “provid[ing] civil remedies to victims of torture or extrajudicial killing.”106 Thus, in sum, then-Judge Kavanaugh shifted the premises for discerning whether ATS suits are preempted or displaced. His opinion substituted the more difficult to demonstrate, binding, and precedential language of Sosa—requiring a showing that Congress had shut the door by occupying the field—with a vague, malleable inquiry into whether Congress had “cast doubt on their asserted ATS claim by direct or indirect command,” and further sought to impose the burden upon the plaintiff to demonstrate that such had not occurred. 107 This standard is not just a misstatement of the Sosa majority position. It is also unfaithful to Justice Breyer’s concurrence in that then-Judge Kavanaugh substitutes Justice Breyer’s language requiring that Congress “make clear that courts should not recognize any such norm” 108 with a burden on the plaintiff to show Congress had not “cast doubt” on their claim. 109 In this way, then-Judge Kavanaugh’s rule in fact increases judicial discretion by supplanting both Sosa’s “occupying the field” analysis—rules of decision for which are readily available110—and Justice Breyer’s perhaps more malleable clarity standard with an inquiry into “casting doubt,” which lacks stable foundation in ATS jurisprudence and fails to genuinely constrain judicial discretion. 111 And the Court’s

106 See supra note 101 and accompanying text. 107 See supra note 98. 108 See supra note 73 and accompanying text (emphasis added). 109 See supra note 98 (emphasis added). 110 See e.g., SYKES & VANATKO, supra note 97, at 17–23 (summarizing field preemption and precedent concerning it); Rice v. Santa Fe Elevator Corp. 331 U.S. 218 (1947) (concerning grain warehousing); Arizona v. United States, 567 U.S. 387 (2012) (concerning alien registration); Hines v. Davidowitz, 312 U.S. 52, 72–74 (1941) (concerning the same); Va. Uranium, Inc. v. Warren, 139 S. Ct. 1895 (2019) (concerning nuclear energy safety regulation). 111 See supra text accompanying note 107.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 291

subsequent decision in Mohamad suggests that concerns regarding congruity should not prevail over a lack of relevant shared text.112

3. The Ninth and Seventh Circuits Take Their Turn Three days after the D.C. Circuit issued its decision in Exxon, the Seventh Circuit likewise held that corporate liability was not barred under the ATS in Flomo v. Firestone Natural Rubber Company.113 Judge Posner’s majority opinion (characteristically) provides an insightful law and economics analysis of the issue,114 concluding by stating: “It is neither surprising nor significant that corporate liability hasn't figured in prosecutions of war criminals and other violators of customary international law. That does not mean that corporations are exempt from that law.” 115 In contrast to a norm-by-norm approach to whether customary international law provides for corporate liability, Judge Posner distinguished “between a principle of … law, which is a matter of substance, and the means of enforcing it, which is a matter of procedure or remedy.”116 Thus, like Judge Leval, Judge Posner adopted the position that corporate liability was

112 See supra notes 101–102 and accompanying text. 113 643 F.3d 1013 (7th Cir. 2011). 114 Judge Posner, for instance, discusses economic effects of civil liability for corporations in relation to individual prosecution of corporate officers. See id. at 1017–19 (citing John C. Coffee, Jr., ‘No Soul to Damn: No Body to Kick’: An Unscandalized Inquiry into the Problem of Corporate Punishment, 79 MICH. L. REV. 386, 447–48 (1981)). See also id. at 1021 (responding to an amicus brief that argued corporate ATS liability was inappropriate because of the negative impact it would have on business: “That may seem both irrelevant and obvious; it is irrelevant, but not obvious. Businesses in countries that have and enforce laws against child labor are hurt by competition from businesses that employ child labor in countries in which employing children is condoned.”). 115 Id. at 1019. 116 Id. at 1019 (emphasis added); see also id. (“If a plaintiff had to show that civil liability for such violations was itself a norm of international law, no claims under the [ATS] could ever be successful, even claims against individuals; only the [U.S.] . . . has a statute that provides a civil remedy for violations of customary international law.”).

292 New York University Journal of Law & Liberty [Vol. 14:264

a matter left to individual states, noting that many treaties “explicitly authorize national variation” of this sort.117 Several months after Flomo, the Ninth Circuit issued its en banc decision in Sarei v. Rio Tinto, PLC,118 holding that corporate liability was available under the ATS based on their findings that the ATS itself did not bar corporate liability and that the “jus cogens prohibition of genocide extends to corporations.”119 The majority did not discuss the TVPA beyond noting that its language and legislative history “reflected congressional intent to limit liability under that statute to individuals,” while, by contrast, the “ATS contains no such language and has no such legislative history to suggest that corporate liability was excluded and that only liability of natural persons was intended.”120 Interestingly, one of the concurrences provides more to work with in terms of statutory analogy. Judge McKeown, in a section of her concurrence that was joined by Judges Reinhardt and Berzon, in fact invoked the TVPA in support of allowing corporate liability: “Just as the Court [in Sosa] found it significant that Congress did not amend or supplant the ATS when it enacted the TVPA, I find it significant that Congress did not amend the ATS to preclude corporate liability when it adopted the TVPA's clear restriction to natural person defendants.”121 As the Ninth Circuit noted in its next case concerning ATS corporate liability—Doe v. Nestlé, which followed Sarei’s lead in

117 Id. at 1020. 118 671 F.3d 736 (9th Cir. 2011). 119 Id. at 759. 120 Id. at 747–48; see also Mariani, supra note 14, at 1385 (“[T]he ATS and the TVPA are an exercise in contrasts. The ATS . . . speaks in terse, open-ended, and somewhat cryptic language, offering little to define its terms, scope, or even nature. . . . The TVPA . . . provides significantly more guidance to those seeking to interpret and apply it.”). 121 Sarei, 671 F.3d at 785 (McKeown, J., concurring in part and dissenting in part) (emphasis added).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 293

allowing corporate liability122—Sarei established several significant principles regarding corporate liability under the ATS. Two of these are of particular relevance to this Note. First, analysis proceeds norm- by-norm because there is no categorical rule regarding corporate liability.123 And, second, under such an analysis corporate liability depends not upon showing “international precedent enforcing legal norms against corporations,” but rather “whether the underlying norm extends prohibitions to the defendant in question.”124

C. JESNER AND ITS PROGENY 1. The Jesner Opinions The controlling portions of Justice Kennedy’s plurality opinion in Jesner found that foreign corporations could not be held liable under the ATS due to the pronounced foreign affairs implications of allowing such liability. Justices Alito and Gorsuch both joined sections of Justice Kennedy’s plurality opinion that disposed of the issue on the grounds that allowing suits against foreign corporations would cause the sort of diplomatic tensions the ATS was designed to avoid. Justice Alito wrote separately to argue that this conclusion was likewise compelled by separation of powers concerns.125 Justice Gorsuch offered two reasons to dismiss the suit: separation of powers concerns similar to those elaborated by Justice Alito,126 and that Jesner was essentially a foreign-cubed case. 127 Neither Justice Alito nor Justice Gorsuch joined the parts of the plurality opinion that argued

122 Doe I v. Nestlé USA, Inc., 766 F.3d 1013 (2014). 123 Id. at 1022. 124 Id. 125 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1408–12 (2018) (Alito, J., concurring). 126 Id. at 1412–13 (Gorsuch, J., concurring). 127 Id. at 1414–19 (Gorsuch, J., concurring). Foreign-cubed cases are those in which foreign plaintiffs sue foreign parties based on activity that occurred in foreign countries. See Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 283 n.11 (2010) (quoting Morrison v. Nat’l Australia Bank, 547 F.3d 167, 172 (2d Cir. 2008)).

294 New York University Journal of Law & Liberty [Vol. 14:264

for statutory analogy, asserted that customary international law provided the rules of decision, and found that corporate liability was not a norm in customary international law. Justice Thomas and Chief Justice Roberts joined Justice Kennedy’s opinion in full. Justice Kennedy framed usage of statutory analogy with reference to: (1) the area being “fraught with foreign-policy consequences,” (2) the Court’s prior practice of looking to analogous statutes for guidance on the “appropriate boundaries of judge-made causes of action,”128 and (3) Sosa’s direction to “look for legislative guidance before exercising innovative authority over substantive law.”129 The plurality next argued that the TVPA is the “logical place to look for a statutory analogy” because it was the “only cause of action under the ATS created by Congress rather than the courts” and represented “Congress’ considered judgment of the proper structure for a right of action under the ATS.”130 The plurality then stated that the TVPA limiting liability to individuals131 is “all but dispositive” to the issue under the ATS.132 This characterization is vulnerable to criticism both for being unfaithful to Sosa and misconstruing the TVPA. Indeed, Justice Kennedy’s plurality opinion in Jesner took even greater liberties interpreting Sosa than then-Judge Kavanaugh in Exxon—perhaps unsurprisingly given that the Court in Jesner was not bound by Sosa in the same manner as a lower court. The plurality made no attempt to grapple with Sosa’s language concerning “occupying the field”

128 Jesner, 138 S. Ct. at 1403 (plurality opinion) (first citing Miles v. Apex Marine Corp., 498 U.S. 12, 24 (1990); and then citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736 (1975)). 129 Id. (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 726 (2014)). 130 Id. (emphasis added). 131 Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73, note following 28 U.S.C. § 1350 (2018); see Mohamed v. Palestinian Auth., 566 U.S. 449 (2012) (holding that defendant class of “individuals” in TVPA text did not include corporations). 132 Jesner, 138 S. Ct. at 1404 (plurality opinion).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 295

and instead merely adopted a generalized inquiry into legislative guidance. Further, as the dissent notes, Justice Kennedy took no notice of Sosa’s direction towards a norm-by-norm analysis—instead extending the logic of the TVPA to terrorism claims rather than merely to torture and extrajudicial killing as then-Judge Kavanaugh had.133 Further, closer examination of the TVPA and its legislative history confirm that the Kennedy plurality’s assertion that the TVPA was created as a “cause of action under the ATS” is demonstrably false. The TVPA has long been recognized as quite similar to the ATS, with some describing it as the ATS’ “statutory cousin.”134 But, the TVPA is of course more akin to a cousin many times removed than a first cousin: It was passed over 200 years after the ATS, and no text of the TVPA suggests any relationship to the ATS. 135 Rather, the plurality opinion seems to rely upon the TVPA’s codification as a note to the ATS to support it being a cause of action under the ATS.136 However, this has rightly been criticized for attaching undue significance to the Office of Law Revision Counsel’s (OLRC) decision—made for the TVPA without any express direction from Congress—regarding where to place the TVPA in the United States Code.137 As William J. Aceves notes, attaching any significance to the TVPA’s placement would violate “established practice” and had

133 Id. at 1433–34 (Sotomayor, J., dissenting). 134 Brad Emmons, Tortured Language: “Individuals,” Corporate Liability, and the Torture Victim Protection Act, 96 MINN. L. REV. 675, 677 (2011). 135 Cf. supra notes 101–102. 136 See supra note 16 and accompanying text. 137 William J. Aceves, Correcting an Evident Error: A Plea to Revise Jesner v. Arab Bank, PLC, 107 GEO. L.J. ONLINE 63, 65 (“[The plurality] disregarded longstanding practice and black letter law that the placement of a statutory note in the U.S. Code by the Office does not have any substantive impact on the law’s meaning, interpretation, or application.”). Aceves received confirmation from Ralph V. Seep, Counsel for the OLRC, that the OLRC had placed the TVPA under the ATS in the U.S. Code without any direction from Congress. Id. at 74 & n.82.

296 New York University Journal of Law & Liberty [Vol. 14:264

been previously flagged as problematic by Judge Williams of the D.C. Circuit.138 Absent any on-point text (let alone clear and unambiguous text),139 courts very often turn to legislative history.140 There is broad agreement that, if turning to legislative history, “[c]onference committee reports and committee reports should sit at the top of authority, followed by statements of the bill’s managers in the Congressional Record, with stray statements of legislators on the floor—who had heretofore not been involved in consideration of the bill—at the bottom.”141 This Note’s analysis proceeds in that order. To their credit, the Jesner plurality did rely upon House and Senate committee reports. To their discredit, they misconstrue them as demonstrating that the TVPA was created as a cause of action “under the ATS.”142 Even a cursory analysis demonstrates the error

138 Id. at 76 (“[I]nference of congressional intent from the placement of the statute within the United States Code is dubious, at least absent some indication—lacking here—that Congress itself, rather than simply the Office of Law Revision Counsel directed that placement.” (quoting Belhas v. Ya’alon, 515 F.3d 1279, 1293 (D.C. Cir. 2008) (Willliams, J., concurring))). 139 See supra note 120; see also infra note 220. 140 See, e.g., ROBERT A. KATZMANN, JUDGING STATUTES 29 (2014) (“When statutes are unambiguous . . . the inquiry for a court generally ends with an examination of the words of the statute.”); Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation From the Inside— An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 STAN. L. REV. 901, 965 (2013) (“[L]egislative history was emphatically viewed by almost all of our respondents—Republicans and Democrats, majority and minority, alike—as the most important drafting and interpretive tool apart from text.”); Adam M. Samaha, If the Text Is Clear—Lexical Ordering in Statutory Interpretation, 94 NOTRE DAME L. REV. 155, 157 (2018) (discussing lexical ordering’s late twentieth century resurgence and current widespread agreement that legislative history could be turned to, at the least, when higher-tier sources (e.g., statutory text) leave the statute’s meaning otherwise unclear); cf. Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1398 (2018) (plurality opinion) (citing House and Senate reports on the TVPA); Mohamed v. Palestinian Auth., 566 U.S. 449, 458–59 (2012) (stating that in deciding whether the TVPA allowed corporate liability “reliance on legislative history is unnecessary in light of the statute’s unambiguous language” (quoting Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 236 n. 3 (2010))). 141 KATZMANN, supra note 140, at 54 (discussing agreement with Chief Justice John Roberts and Senator Orrin Hatch (R-Utah) on utility of legislative history). 142 Jesner, 138 S. Ct. at 1403 (plurality opinion).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 297

of such a reading. The portion quoted by the Jesner plurality (“[the TVPA will] establish an unambiguous and modern basis for a cause of action”) immediately continues: “that has been successfully maintained under an existing law … [the ATS] . . . . The [ATS] has other important uses and should not be replaced.”143 Thus, the TVPA was conceived as separate from and supplementary to the ATS. The record provides no basis to infer that the former was a jurisdictionally subordinate elaboration or extension of predecessor legislation. That the TVPA was not a cause of action under the ATS is further confirmed by reference to the Senate Judiciary Committee Report’s discussion of Congress’s power to enact the legislation. No mention is made of the proposition that the TVPA was enacted under a jurisdictional base derived from the ATS. 144 Rather, the Senate Report discusses two constitutional bases: (1) Art. III “arising under” jurisdiction, Paquete Habana’s holding that “the law of the United States includes international law,”145 and Verlinden’s holding that the arising under clause allows Congress to “confer jurisdiction on U.S. courts to recognize claims brought by a foreign plaintiff against a foreign defendant,” 146 and, (2) Article 1, Section 8 of the Constitution’s authorization of Congress “to define and punish . . . Offenses against the Laws of Nations.”147 The re-emergence of the ATS as a significant area of litigation had already occurred by the time the TVPA was drafted. Had the relationship between the two posited by the Jesner plurality been intended, the House and Senate reports would likely have articulated it.

143 H.R. Rep. No. 102-367, at 3 (1991); S. Rep. No. 102-249, at 4 (1991). 144 The House Report, H.R. REP. NO. 102-367, does not discuss the powers under which Congress enacted the TVPA. 145 S. REP. NO. 102-249, at 5 & n.4 (citing The Paquete Habana, 175 U.S. 677, 700 (1900)). 146 Id. (citing Verlinden B. V. v. Central Bank of Nigeria, 462 U.S. 480, 481 (1983)). 147 Id. at 5–6.

298 New York University Journal of Law & Liberty [Vol. 14:264

Further confirmation of the conclusion that the TVPA was not enacted as a cause of action “under the ATS” seems unnecessary. Nonetheless, statements of the TVPA’s sponsor and introducer, Congressman Yatron148—which are widely agreed to be the next- most reliable form of legislative history to examine149—supply such confirmation:

International human rights violators visiting or residing in the United States have formerly been held liable for money damages under the Alien Tort Claims Act. It is not the intent of the Congress to weaken this law, but to strengthen and clarify it. Federal courts should not allow congressional actions with respect to this legislation to prejudice positive developments, but rather to act upon existing law when ruling on the cases presently before them.150 Thus, the TVPA’s legislative history clearly indicates Congress neither intended it to be read as a cause of action under the ATS, nor intended to in any way replace or diminish the ATS. Further, Justice Sotomayor’s dissent—joined by Justices Ginsburg, Kagan, and Breyer—points out that the ATA, which allows corporate liability, 151 confounds the plurality’s ATS-TVPA argument. The dissent rightly critiqued the majority’s characterization of the TVPA, introduced the ATA as a potentially better analogy, and argued that even if the ATA should not govern

148 H.R. REP. NO. 102-367, at 6 (stating “HR 2092 was introduced by Mr. Yatron”). 149 See supra note 141 and accompanying text. 150 The Torture Victim Protection Act: Hearing and Markup on H.R. 1417 Before the Subcomm. on Human Rights and International Organizations of the H. Comm. on Foreign Affairs, 100th Cong. 1 (1988) (statement of Rep. Gus Yatron, Chairman, H. Comm. on Human Rights and International Organizations) (emphasis added). 151 For a general discussion of actions brought under the ATA against U.S. corporations, see U.S. Firms Continue to Face Liability for Terrorist Attacks Under the Antiterrorism Act, CADWALADER, WICKERSHAM & TAFT LLP, Aug. 29, 2018, https://perma.cc/HD3M-MNHT.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 299

analysis, its “different judgment about the scope of liability” still defeats arguments that the TVPA demonstrates Congress “considered judgment” not to allow corporate liability for international human rights violations.152 Analysis of the ATA’s legislative history confirms the dissent’s criticisms. By contrast to the TVPA, few cases have directly considered the relationship between the ATA and the ATS—Jesner being the obvious exception. The only mention of the ATS made in the ATA’s legislative history is that cited by the dissent in Jesner: then-President of the Lincoln Legal Foundation Joseph Morris’ written testimony before the Subcommittee on Courts and Administrative Practice of the Senate Judiciary Committee. 153 As Morris noted in his testimony, the Lincoln Legal Foundation had helped to draft the ATA.154 Importantly, Morris succinctly dismissed any concerns that the ATA would abridge availability of the ATS:

[R]ights of action against the more egregious abuses of terrorism would be preserved. For example, an action on the facts of Filártiga v. Peña-Irala, involving torture by a Paraguayan policeman in violation of Paraguayan law, could still be maintained. This bill would leave open the question of whether or not state terrorism is actionable under the Alien Tort Statute, 28 U.S.C. § 1350, and would not affect current case law, notably Filártiga, on the application of that statute.155

152 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1434 (Sotomayor, J., dissenting). 153 Hearing on S. 2465 before the Subcomm. on Courts and Administrative Practice of the Senate Comm. on the Judiciary, 101st Cong. 90 (1990) (testimony of Joseph A. Morris). 154 Id. at 81 (“We were privileged to have been called upon to play a role in the drafting of this bill.”). 155 Id. at 90.

300 New York University Journal of Law & Liberty [Vol. 14:264

Thus, in sum, a party invited to help draft the ATA—presumably by the bill’s sponsors—and also to testify regarding the ATA, believed it did not disturb the ATS. And no members of Congress felt the need to question or dispute that conclusion, nor to mention it themselves in any way.

2. Uncertain Guidance: Lower Courts Divide on American Corporations’ ATS Liability Jesner has inspired many arguments but provided little clarity for lower courts seeking to resolve claims against American corporations under the ATS—an unsurprising development given the Court’s highly fractured opinions. Post-Jesner, district courts have continued to split sharply both upon whether Jesner suggests American corporations cannot be liable and the utility and appropriateness of statutory analogy. A mere two months after Jesner, the Eastern District of Virginia held in Al Shimari v. CACI Premier Tech., Inc. that corporate liability against American corporations was proper under the ATS.156 In January 2019, the District of Maryland went the same way in Estate of Alvarez v. Johns Hopkins, and expressly rejected analogy to the TVPA. 157 Specifically, the court reasoned that the TVPA was of “little assistance” because its jurisdictional limitation to claims against “‘an individual’ acting ‘under actual or apparent authority, or color of law, of any foreign nation’” clearly presents a “foreign-policy dilemma” that suits against domestic corporations do not.158 In June 2019, the D.C. District Court bucked the trend in a claim alleging torture and extrajudicial killing by holding that

156 Al Shimari v. CACI Premier Tech., Inc., 320 F. Supp. 3d 781, 787–88 (E.D. Va. 2018) (engaging with Jesner’s emphasis on foreign affairs impacts in considering a torture claim but not discussing analogy to the TVPA). 157 Estate of Alvarez v. Johns Hopkins, 373 F. Supp. 3d 639 (D. Md. 2019). 158 Id. at 649 (citing 38 U.S.C. § 1350 note).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 301

American corporations are not subject to liability under the ATS.159 In support of this holding, the court essentially reiterated the Jesner plurality’s statutory argument160—even citing the same two cases in support of statutory analogy161—and also incorporated aspects of then-Judge Kavanaugh’s articulation of the norm-specific argument for statutory analogy.162 Most notably, two petitions for writ of certiorari regarding American corporations’ liability following Jesner reached the Court in Fall 2019 and the Court has granted them, consolidating the cases. 163 Both stem from the same decision: Following Jesner, the Ninth Circuit denied rehearing of Doe v. Nestlé, S.A—determining that because Jesner did not opt to forbid American corporate liability Ninth Circuit precedent allowing American corporations to be liable under the ATS would continue to govern. 164 Nestlé and Cargill— both named defendants in Nestlé—filed petitions for certiorari, and both invoked statutory analogy. In their petition, Nestlé invoked the statutory analogy argument advanced by then-Judge Kavanaugh in Doe v. Exxon:

Even before Jesner, then-Judge Kavanaugh had provided yet another reason why domestic corporate liability cannot stand. He observed that Congress has foreclosed corporate liability through the TVPA, creating the strong inference that

159 Doe v. Exxon Mobil Corp., 391 F. Supp. 3d 76, 91 (D.D.C. 2019). 160 Id. 161 Id. (“[C]ourts often look to analogous statutes for guidance in interpreting the boundaries of judge-made causes of action.” (first citing Miles v. Apex Marine Corp., 498 U.S. 19, 24 (1990); and then citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736 (1975))). 162 Id. at 92 (“Put simply, Sosa told courts in ATS cases to look to Congress for guidance, and Congress has specifically delineated what limits should attach to civil suits for torture and extrajudicial killing.” (quoting Doe v. Exxon Mobil Corp., 654 F.3d 11, 88 (D.C. Cir. 2011) (Kavanaugh, J., dissenting))). 163 See supra note 26 and accompanying text. 164 Doe v. Nestlé, S.A., 929 F.3d 623 (9th Cir. 2018).

302 New York University Journal of Law & Liberty [Vol. 14:264

Congress did not intend for corporations to face liability in the ATS context, either.165 Cargill did not invoke then-Judge Kavanaugh’s Doe v. Exxon dissent, instead solely mentioning the Jesner plurality’s “all but dispositive” and “considered judgment” language.166 Further, Solicitor General Francisco, in his recent brief covering both petitions, similarly advocated for ATS-TVPA analogy and, ultimately, that corporate liability should not be allowed under the ATS at all.167 Notably, this marks an 180-degree reversal from the Solicitor General’s position in Kiobel. 168 As statutory analogy threatens to further narrow the opening in the courthouse doors that Filártiga wrought, the time is ripe for this Note’s systematic critique.

II. LOOKING TO ANALOGOUS STATUTES Due to the ATS’ dearth of legislative history, its extremely brief text, and the split-Court it occasioned in Jesner, corporate liability under the ATS provides an ideal entry point—or, at the least, an interesting and illuminating one—to discussion of several issues

165 Petition for Writ of Certiorari for Defendant-Appellant at 27, Nestlé USA, Inc., v. Doe, No. 19-416 (U.S. Sept. 25, 2019) (citing Exxon, 654 F.3d at 73 (Kavanaugh, J., dissenting)). 166 Petition for Writ of Certiorari for Defendant-Appellant at 34, Cargill, Inc. v. Doe, No. 19- 453 (Oct. 2, 2019) (quoting Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403–04 (2018) (plurality opinion)). 167 Brief for the United States as Amicus Curiae at 10–11, Nestlé USA, Inc., v. Doe, No. 19- 416, and Cargill, Inc., v. Doe, Nos. 19-453 (May 26, 2020) (quoting Jesner, 138 S.Ct. at 1403– 04 (plurality opinion)). 168 See Brief for the United States as Amicus Curiae Supporting Petitioners at 27 n.16, Kiobel v. Royal Dutch Petroleum Co., 529 U.S. 108 (2013). Regarding the Court’s pending decision in Mohamad, Solicitor General Verrilli emphasized that even if the Court were to hold that the TVPA does not allow corporate liability, that “would not support a categorical rejection of corporate liability under the ATS.” Id. Specifically, Solicitor General Verrilli noted that the TVPA “is distinct from the ATS in several respects,” including its text and that the TVPA solely provides a cause of action “for certain acts under color of law of a ‘foreign nation,’ whereas the ATS “was enacted to confer federal court jurisdiction and does not specify the law- of-nations violations that may be actionable.” Id.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 303

under-addressed in current statutory interpretation literature. 169 First, what are the contours of the practice of looking to analogous statutes? Second, what factors are relevant and / or dispositive in selecting analogous statutes to guide judicial reasoning as Justice Kennedy discussed in Jesner170 (e.g., plaintiff class, nature of offense etc.)? Third, what are the implications of this practice for judicial roles and interpretive methods, and, more broadly, how should this practice be classified within literature on statutory interpretation? Fourth, how appropriate is the practice of looking to analogous statutes in context of the ATS? Finally, what might a norm-by-norm approach to congressional intent under the Alien Tort Statute look like, and what are its implications? In Section II.A this Note examines the cases Jesner itself cites to, Blue Chip and Miles, highlighting the contours of the practice in those opinions and how they fail to justify the practice as it was employed in Jesner. Section II.B analyzes the best-established example of statutory analogy: borrowing of statutes of limitations from analogous statutes, for which the underlying presumption that Congress intends for there to be some time-bar on actions justifies analogy. 171 By contrast, I argue that no such similar practice justifies statutory analogy in ATS context. Section II.C attempts to situate this practice within statutory interpretation literature and jurisprudence writ more broadly. Specifically, it examines the in pari materia canon,

169 See generally William N. Eskridge, Jr., Post-Enactment Legislative Signals, 57 L. & CONTEMP. PROBS. 75, 78 (1994) (“When the legislative history is clear and the statutory text is equally clear, then the job of interpretation is an easy one. The more interesting cases are those where neither the statutory text nor the original legislative history anticipates the interpretive issue before the Court.”). 170 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386. 1403 (2018) (plurality opinion) (“Even in areas less fraught with foreign-policy consequences, the Court looks to analogous statutes for guidance on the appropriate boundaries of judge-made causes of action.” (first citing Miles v. Apex Marine Corp., 498 U.S. 12, 24 (1990); and then citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736 (1975))). 171 See infra note 200 and accompanying text.

304 New York University Journal of Law & Liberty [Vol. 14:264

criticisms of the practice as essentially constituting reliance on subsequent legislative history, and concerns regarding judicial discretion—ultimately finding little justification for the practice, and many concerns that “cast doubt”172 upon it.

A. ON JESNER’S OWN TERMS: BLUE CHIP AND MILES As both Justice Kennedy and then-Judge Kavanaugh noted, Sosa does confirm the practice of looking for “legislative guidance” in creating judicially implied causes of action.173 However, Sosa does not prescribe a particular form that this “legislative guidance” should take. Thus, it is perhaps little surprise that Justice Kennedy and then-Judge Kavanaugh depart in justifying their focus on the TVPA. Then-Judge Kavanaugh, discussing why “incongruity” with the TVPA should determine the issue, cited no other supporting authority beyond his very broad reading of Sosa. By contrast, Justice Kennedy cited Blue Chip Stamps v. Manor Drug Stores (a securities case) and Miles v. Apex Marine Corp. (an admiralty case) in support of looking to analogous statutes for limitations on judicially created private rights of action.174 This Section elaborates several rationales the Court in Miles invoked in support of looking to analogous statues and finds them largely absent in context of corporate liability under the ATS. It also distills an additional factor (contemporaneity) from Blue Chip and highlights the conceptual uncertainty that the opinion raises regarding the theoretical foundations and justifications of this practice.

172 Doe v. Exxon Mobil Corp., 654 F.3d 11, 86 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). 173 Jesner, 138 S. Ct. at 1403 (plurality opinion) (arguing that looking for “legislative guidance” is particularly important “in the realm of international law” (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 695 (2004))). 174 See supra note 128 and accompanying text.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 305

1. Miles: Uniformity, Extensive Legislation, and Direct Speech Miles,175 the first case cited by the Jesner plurality in support of looking to analogous statutes, provides weak-at-best support for the practice and in fact, seems to undercut it in ATS context. In Miles, the Court was faced with a claim by Mercedel Miles, the mother and administratrix of the estate of a seaman who was stabbed to death aboard a vessel owned, operated, and chartered by Apex Marine Corporation. 176 The Jesner plurality cites to a portion of Miles discussing the Court’s prior ruling in Moragne, in which the Court was faced with the issue of whether Congress, by establishing “a policy in favor of maritime wrongful death recovery” through the Jones Act and Death on the High Seas Act, had “proscribed a more general maritime cause of action,”—in other words, one created by courts under federal common law. 177 The Court in Moragne concluded Congress had not proscribed such an action.178 Close reading of Miles beyond the portion cited in Jesner reveals two factors—beyond the goal in admiralty of seeking uniformity179— that justify looking to analogous statutes for limitations: (1) the extent to which Congress has legislated in an area and (2) how directly Congress has spoken to an issue.180 Thus, a significant distinction is clear between these cases and those under the ATS: Congress has

175 Miles v. Apex Marine Corp., 498 U.S. 19 (1990). 176 Id. 177 Id. at 24 (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970)). 178 Id. (citing Moragne, 398 U.S. at 393 & n.10). 179 See, e.g., Dutra Group v. Batterton, 139 S. Ct. 2275, 2284 (2019) (holding that availability of punitive damages as a remedy in actions for unseaworthiness was inappropriate as it compromised, rather than furthered, uniformity of maritime law in relation to Congress’s “clearly expressed policies”). 180 Miles, 498 U.S. at 27 (“We no longer live in an era when seamen and their loved ones must look primarily to the courts [for] substantive legal protection . . . ; Congress and the States have legislated extensively in these areas. In this era, an admiralty court should look primarily to these legislative enactments for policy guidance.”); id. at 31 (affirming that courts should not supplement maritime statutes if Congress has spoken directly to the question).

306 New York University Journal of Law & Liberty [Vol. 14:264

legislated extensively in both securities and admiralty, while the same cannot be said of the area in which the ATS falls. 181 Miles confirms the significance of this distinction: The Court held that Congress and States having “legislated extensively” regarding the area of injury and death of seamen was the reason admiralty courts should look primarily to related statutes for guidance.182 One could also attempt to distinguish Miles by the degree to which Congress has spoken directly to the issue, but this argument seems much weaker. The argument that the TVPA’s statutory language (i.e., “individual”) does not speak directly to corporate liability is directly undercut by the Court’s 8-1 decision in Mohamed v. Palestinian Authority, which determined that the plain text was unambiguous and thus looking to legislative history was not even necessary as to this issue.183 Rather, the more apparent issue with Justice Kennedy’s reasoning in relation to Miles arises by inquiring into the interrelated issues of what are “analogous statutes” to the ATS, and what “area” of legislation the ATS is part of. At least three possible formulations emerge. First, if taken broadly to encompass statutes concerning “foreign relations law,” it seems clear that corporate liability is quite acceptable: The Foreign Sovereign Immunities Act allows liability of state-owned corporate entities,184 the Foreign Corrupt Practices Act likewise expressly allows corporate liability (in both criminal and

181 The “area” the ATS falls in is itself debatable. Indeed, differing categorizations of this area could vary which statutes are in fact analogous, see infra text accompanying notes 184188. 182 Miles, 498 U.S. at 27. 183 Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012). 184 See 28 U.S.C. § 1603(b)(1) (2018) (defining agency or instrumentality of a foreign state to include any entity “which is a separate legal person, corporate or otherwise”) (emphasis added).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 307

civil contexts),185 the Trafficking Victims Protection Reauthorization Act allows corporate liability, 186 and the ATA clearly allows corporate liability.187 Thus, in such a formulation, the TVPA would seem the only stand-out, and Congress clearly would not have spoken directly and unambiguously to the issue. Alternatively, if formulated extremely narrowly—as Justice Kennedy argued was appropriate in Jesner—then the TVPA would perhaps be the only apt analogy. But that runs into a different issue: the “area” is narrowed to such an extent that it would seem unlikely Congress had “legislated extensively” in it. Most would agree that a total of two congressional statutes, one of them only 33 words, over more than 200 years does not constitute extensive legislation. As such, this conceptualization—though it perhaps favors the result sought by the Jesner plurality—fails to find support even on the plurality’s own terms. Finally, a middle-ground interpretation—of the sort Justice Sotomayor’s dissent in Jesner seems to endorse—could also include the ATA as an example of where “Congress has elsewhere imposed liability on corporations for conduct prohibited by customary international law.” 188 Setting aside the threshold issue of whether looking to analogous statutes is even appropriate, it is under this third formulation of the “area” in which Congress has legislated extensively that the norm-by-norm approach seemingly endorsed by

185 15 U.S.C. §§ 78dd-1(g) and 78dd-2(i) (2018). See generally CRIMINAL DIV., U.S. DEP’T OF JUSTICE, & ENFORCEMENT DIV., U.S. SEC. AND. EXCH. COMM’N, FCPA: A RESOURCE GUIDE TO THE U.S. FOREIGN CORRUPT PRACTICES ACT 27–34 (2012), https://perma.cc/W7ZU-4PHK (stating that “[g]eneral principles of corporate liability apply to the FCPA,” and discussing civil and criminal liability for violation of anti-bribery provisions). 186 18 U.S.C. § 1581 et seq. (2018). See generally Susan A. Maslow, Business and Ethical Challenges: Human Rights Requirements, Due Diligence, Remediation, and Brand Protection, AM. BAR. ASS’N: BUS. L. TODAY (Nov. 4, 2019) https://www.americanbar.org/groups/business_law/publications/blt/2019/11/ethical- challenges/ (discussing corporate liability under TVPRA). 187 See supra note 15 and accompanying text. 188 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1433 (2018) (Sotomayor, J., dissenting).

308 New York University Journal of Law & Liberty [Vol. 14:264

then-Judge Kavanaugh and the Jesner dissent bears most import. For torture it may lean towards no corporate liability, but for non-TVPA offenses—such as child slavery in Nestlé—would clearly suggest corporate liability should be available. That said, issues likewise attend such a formulation as elaborated in Section III.C infra.

2. Blue Chip: Contemporaneity and Conceptual Confusion In Blue Chip, the second case cited by the Jesner plurality in support of this practice, the Court analyzed the scope of the plaintiff class for a judicially-implied cause of action under Securities and Exchange Commission rule 10b-5 by analogy to a similar expressly created private right of action in the Securities Exchange Act of 1934. 189 The Court ultimately held that parties that had “neither purchased nor sold any of the offered shares” could not be plaintiffs.190 While at first glance Blue Chip seems to directly support the Jesner plurality, close reading in fact both introduces a further rationale for looking to analogous statutes that is lacking in ATS context and prompts doubts as to the theoretical foundation of the practice of looking to analogous statutes. Detached from context, Blue Chip appears to directly support the practice of looking to analogous statutes: “It would indeed be anomalous to impute to Congress an intention to expand the plaintiff class for a judicially implied cause of action beyond the bounds it delineated for comparable express causes of action.”191 On its face this language certainly seems applicable to the issue at play in Jesner because the TVPA is an express cause of action, whereas those under the ATS are judicially-implied. An argument could be made that this provides only weak support for the practice because Blue Chip dealt

189 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 736 (1975). 190 Id. at 725 (citing Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952)). 191 Id. at 736.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 309

with a plaintiff class rather than a defendant class.192 However, a counterargument is available that despite the fact that it concerns the opposite side of the “v.,” Blue Chip is nonetheless apposite as an illustration of this principle being applied to determine permissible parties under the statute. However, a crucial piece of Blue Chip’s context provides the rationale for its effective importation of limitation by analogy: The two statutes in Blue Chip were enacted contemporaneously. Thus, Blue Chip concerned one suite of securities statutes all enacted by the same Congress. This is a far cry from the 200-year lacuna between the ATS’ enactment and that of TVPA. The contemporaneous nature of the legislation at issue would seem somewhat relevant to both Miles factors (directness and extensivity), or may be better classified distinctly as a third relevant factor. And it is likewise relevant to the in pari materia canon, as discussed in Section II.C.I infra. This distinction is particularly significant in Nestlé because Nestlé now seeks to rely on precedent stemming from Blue Chip that is plainly inapposite. In their merits brief before the Court, Nestlé quotes Touche Ross & Company v. Redington for the proposition that “[w]here Congress has already crafted a remedy for the sort of conduct in question, this Court has been ‘extremely reluctant to imply a cause of action . . . that is significantly broader than the remedy that Congress chose to provide.’”193 Such a characterization plays fast and loose with Touche Ross’s reasoning by omitting its contemporaneity rationale. The sentence Nestlé quotes from in fact cites Blue Chip, stating that: “[W]here the principal express civil remedy . . . created by Congress contemporaneously with the passage of

192 See id. (“It would indeed be anomalous to impute to Congress an intention to expand the plaintiff class for a judicially implied cause of action beyond the bounds it delineated for comparable express causes of action.”). 193 Brief for Petitioner Nestlé USA, Inc at 44, Nestlé USA, Inc. v. Doe, Nos. 19-416 & 194-53, (U.S. Aug. 31, 2020) (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 574 (1979)).

310 New York University Journal of Law & Liberty [Vol. 14:264

[the statute] is by its terms limited to purchasers and sellers of securities, we are extremely reluctant to imply a cause of action . . . significantly broader than the remedy that Congress chose to provide.”194 Thus, Touche Ross is just as inapposite as Blue Chip. Further, though Blue Chip provides less to work with in analyzing Jesner, it does raise other significant questions regarding how to conceptualize the practice of looking to analogous statutes. Immediately following the statement most supportive of the practice discussed above, Blue Chip hedged its bets:

Having said all this, we would by no means be understood as suggesting that we are able to divine from the language of s 10(b) the express ‘intent of Congress' as to the contours of a private cause of action under Rule 10b-5. When we deal with private actions under Rule 10b-5, we deal with a judicial oak which has grown from little more than a legislative acorn. Such growth may be quite consistent with the congressional enactment and with the role of the federal judiciary in interpreting it, but it would be disingenuous to suggest that either Congress in 1934 or the Securities and Exchange Commission in 1942 foreordained the present state of the law with respect to Rule 10b-5. It is therefore proper that we consider, in addition to the factors already discussed, what may be described as policy considerations when we come to flesh out the portions of the law with respect to which neither the congressional enactment nor the administrative regulations offer conclusive guidance.195 Thus, what exactly the Court was attempting to discern by looking to analogous statutes—even when enacted

194 Touche Ross, 442 U.S. at 574 (emphasis added) (citing Blue Chip, 421 U.S. at 735–36). 195 Id. at 737 (citations omitted).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 311

contemporaneously—is left uncertain. The Court explicitly stated it did not attempt to discern Congress’s express intent, but also seemed to distinguish this from its subsequent “policy considerations.”196 In sum, analysis of cases cited by the Jesner plurality (and by appellant in Nestlé) further highlights the lack of clarity regarding the endeavor they purport to undertake, the (seemingly unresolvable) empirical questions implicated, and how, except for in exceptionally clear-cut cases, this practice may in fact enable and encourage judicial policymaking—veiled by reference to congressional intent or statutory uniformity—rather than offer a useful means of discerning congressional intent.

B. BORROWING LIMITATIONS PERIODS: PRIME EXAMPLE NEGLECTED OR LANDMINE AVOIDED? Analysis of another area of jurisprudence in which courts have looked to analogous statutes fails to resolve these uncertainties. As is clear from Justice Kennedy’s choice of signal in citing Blue Chip and Miles (i.e., “See e.g.” rather than “See”), 197 these are not the only examples of this practice. Indeed, a clearer example of borrowing from other statutes is that “[a]t least five circuits have ruled that the similarity of the TVPA to the [ATS] makes it proper to apply the former’s statute of limitations to claims under the latter.” 198 Borrowing of statutes of limitations—both inside and outside ATS context—represents perhaps the clearest area of practice for imposing limitations on actions by reference to analogous statutes,

196 Id. 197 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018) (plurality opinion). 198 14A CHARLES WRIGHT & ARTHUR R. MILLER, supra note 7, § 3661.4 n.8 and accompanying text.

312 New York University Journal of Law & Liberty [Vol. 14:264

and thus the lack of attention it receives in the Jesner plurality is confusing at first.199 However, it would seem likely that the Jesner plurality in fact chose not to rely on this because for statutes of limitations there is a general presumption that Congress intended to have some such limit,200 while no equivalent presumption attaches to corporate liability under the ATS. Though it could be argued that Sosa’s call for legislative restraint supplies such a presumption, this is unpersuasive because Sosa’s direction to seek guidance and exercise some degree of restraint is much weaker. Sosa’s express statement that, in enacting the ATS, Congress did not expect future legislatures to create causes of action, but rather intended for district courts to have some role in doing so, illustrates this. 201 With statutes of limitations there is a presumption that such a limit must exist and it is merely a matter of selecting where to import it from. By contrast, Sosa merely directs courts to seek legislative guidance—in the form of explicit language or occupying the field202—rather than providing anything to suggest that such guidance presumptively exists and must

199 See Ellen E. Kaulbach, A Functional Approach to Borrowing Limitations Periods for Federal Statutes, 77 CALIF. L. REV. 133, 136–38 (1989) (discussing origins of practice of borrowing statutes of limitations from analogous statutes dating back to the nineteenth century); see generally RICHARD H. FALLON JR. ET AL, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 747–52 (7th ed. 2015) (providing an overview of federal court precedent and practice on borrowing statutes of limitations). 200 See id. at 134 (“Due to the fundamental importance of time limitations on causes of action, courts generally presume that Congress intended some limitation to apply, even if it failed to provide one explicitly. Courts therefore have felt obliged to fill the gap. Nevertheless, courts recognize that they lack special competence or established principles by which to select a particular time limit, and thus they rely, where possible, on legislative judgment. Accordingly, courts generally borrow statutes of limitations from causes of action most analogous to the federal action in question.” (citations omitted)); see also Adams v. Woods, 6 U.S. 336, 342 (1805) (describing a situation in which there were no time limits on a cause of action as “utterly repugnant to the genius of our laws”). 201 Sosa v. Alvarez-Machain, 542 U.S. 692, 719 (2004). 202 See supra Section I.A; supra notes 67–73 and accompanying text.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 313

be discerned. 203 Thus, comparison to the established practice of borrowing of limitations periods highlights a comparatively weak justification for looking to analogous statutes in ATS context.

C. SITUATING THE PRACTICE WITHIN STATUTORY INTERPRETATION LITERATURE Having established that the Jesner plurality’s method of statutory analogy is unsupported on its own terms and by the clearest example of the practice in other contexts, this Section attempts to situate the practice of looking to analogous statutes for guidance within statutory interpretation literature and precedent. It thus grapples with the conceptual vagueness with which this practice has been invoked, both by then-Judge Kavanaugh and Justice Kennedy’s plurality opinion in Jesner. Both then-Judge Kavanaugh and the Jesner plurality attempted to ground their analysis in Sosa’s instruction to the courts to seek “legislative guidance” in construing private rights of action under the ATS. By contrast, Miles largely grounded it within uniformity and expressly noted in relation to Moragne that the situation at play was one “Congress could not have anticipated”— thus defeating an express intent justification.204 Blue Chip likewise did not attempt to claim an express intent justification, instead justifying it through a contemporaneity rationale that was buttressed

203 Jurisprudence on borrowing statutes of limitations does not supply much clearer guidance regarding how to select analogous statutes, particularly as to whether to pursue a claim-by- claim analysis or characterize all claims under a statute uniformly. As Kaulbach notes: “Under traditional doctrine, courts generally characterize a claim on the basis of the facts and legal theories involved in a given case, rather than establish a uniform characterization for all claims under a particular federal statute.” Kaulbach, supra note 199, at 139. However, over the 1980s and 1990s the Supreme Court offered the “new option” of “uniform characterization of claims under a single statute.” Id. at 151. Unfortunately, the Court has “offered little guidance . . . . when courts should employ” this option. Id. 204 Miles v. Apex Marine Corp., 498 U.S. 19, 24 (1990).

314 New York University Journal of Law & Liberty [Vol. 14:264

by—but distinguished from—the Court’s analysis of policy considerations.205 This Section’s analysis proceeds as follows. Section II.C.1 examines whether the in pari materia canon provides support for the practice. I conclude it does not due to lack of similar language and material differences visible in legislative history and purpose. Section II.C.2 evaluates the viability of critiques asserting that the practice effectively amounts to reliance upon subsequent legislative history. Finally, Section II.C.3 evaluates whether the practice tends to expand or constrain judicial discretion. In short, the practice does not find direct support in any widely adopted canon or interpretive method, seems indirectly undermined as toeing-the-line of subsequent legislative history, and arguably enables spinning and cherry picking of sources by adopting a fairly vague, ruleless inquiry.

1. In Pari Materia The most obvious foundation upon which the practice could arguably be rested is the in pari materia canon.206 Formulated broadly, in pari materia suggests courts should “construe[] together . . . legislative act[s] . . . relating to the same subject, the same person or thing, or the same class of persons or things.”207 Thus, at a high level, the argument would be that the ATS and TVPA share subject matter (international law norms) and parties (both allow aliens as plaintiffs).

205 See supra Section II.B.2. 206 For a helpful identification and summary of key sources concerning in pari materia, see VALERIE C. BRANNON, CONG. RESEARCH SERV., R45153, STATUTORY INTERPRETATION: THEORIES, TOOLS, AND TRENDS 61 & n.615 (2018). 207 Francis J. McCaffrey, The Rule in Pari Materia as an Aid to Statutory Construction, 3 LAW. & L. NOTES 11, 11 (1949); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 252 (2012) (“Statutes in pari materia are to be interpreted together, as though they were one law.”).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 315

However, others suggest that the in pari materia presumption is overcome by evidence of material differences between the statutes.208 The importance of similar language appearing in each statute is likewise uncertain. Some formulations merely view similar language as one form of similarity that justifies comparison.209 Others view it as a more central consideration.210 In 2005, for instance, the Court emphasized contemporaneity and similar language in Smith v. City of Jackson: “[W]hen Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.”211 This lack of conceptual clarity regarding in pari materia, thus allowing significant judicial discretion, undermines the most commonly offered rationale for its usage: constraining judicial discretion.212 Beyond this lack of conceptual clarity regarding demarcations of appropriate usage of in pari materia, several further considerations weigh against its usage to buttress statutory analogy here. First, some have suggested that in fact there should be text indicating comparison is intended. For example, even Justice Scalia—a proponent of and frequent utilizer of in pari materia—“shunned such an interstatutory

208 BRANNON, supra note 206, at 61 & n.615 ((quoting WILLIAN N. ESKRIDGE ET AL., CASES AND MATERIALS ON LEGISLATION AND REGULATION: STATUTES AND THE CREATION OF PUBLIC POLICY 1208 (5th ed. 2014) “In pari materia: similar statutes should be interpreted similarly, unless legislative history or purpose suggests material differences.”)). 209 William W. Buzbee, The One-Congress Fiction in Statutory Interpretation, 149 U. PENN. L. REV. 171, 222 (2000) (stating that in pari materia “is invoked when statutes share a common subject matter, employ similar language, or directly refer to one another”). 210 See, e.g., ESKRIDGE ET AL., supra note 208, at 1201 (defining in pari materia as the “[p]resumption that Congress uses same term consistently in different statutes”). 211 544 U.S. 228, 233 (2005). 212 Cf. KATZMANN, supra note 140, at 50–54 (critiquing Justice Scalia and Garner’s focus upon canons of statutory construction over legislative history as a way to constrain judicial discretion for reasons including the lack of a “key” by which to rank canons and the risk of neglecting Congressional intent given Congress’s general lack of awareness of canons (citing SCALIA & GARNER, supra note 207)).

316 New York University Journal of Law & Liberty [Vol. 14:264

comparison due to . . . the lack of textual indication that the two laws were intended to be read together.” 213 Second, in the seeming majority of cases in pari materia has been invoked, a later-enacted statute has been construed to conform with the meaning of (a) formerly enacted statute(s). In this way, in pari materia could be viewed as corresponding to a textualist inquiry into the meaning of words at the time of enactment, and thus as an attempt effectuate congressional intent. However, when applied to determine the scope of a prior-enacted statute by reference to a later-enacted statute, this rationale is absent. Buzbee’s defense of the in pari materia canon (relative to the “one-Congress” fiction that he critiques) vividly captures the significance of this consideration: “The in pari materia approach thus is at least a logical doctrine (even if aspirational) that at its core constrains courts and forewarns legislators that, where authoritative interpretations by the courts of earlier laws exist, the courts are expected to engage in consistent interpretive approaches to later laws.”214 Clearly, in pari materia is contentious and has been for some time, particularly with regard to the appropriate scope of its usage. While it does not seem possible to clearly determine what may be dispositive in whether it should be employed, the following factors are clearly relevant: similar text, text indicating comparison was intended, shared purposes, shared subject matter (both in terms of offense and in terms of concerning a particular class of persons), shared purpose, contemporaneity, and temporal direction of analogy.215

213 Buzbee, supra note 209, at 222 (discussing an opinion in which Justice Scalia argued that “the in pari materia rule did not apply because the fields of employment covered by the two statutes differed and the [later-enacted statute] did not state or imply that it was to be read in light of the [earlier-enacted statute]” (quoting Fort Stewart Sch. v. Fed. Lab. Rel. Auth., 495 U.S. 641, 647–48 (1990))). 214 Id. at 225. 215 See supra notes 207–214 and accompanying text.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 317

The ATS-TVPA analogy finds justification in very few of these factors—and only weak justification at that. The strongest argument is that they deal with the same subject matter. But, as the dissenting Justices in Jesner pointed out, if one considers who can be a plaintiff to be a relevant point of comparison, it is notable that the TVPA extends a cause of action to American citizens while the ATS does not. 216 This distinction in plaintiff class likewise speaks to the differing purposes of the ATS and TVPA: The ATS was enacted to avoid foreign affairs conflicts due to failure to provide a forum to aliens, 217 while the TVPA seems to have been enacted to afford Americans some civil recourse for injury sustained from torture or extrajudicial killing.218 The relevance of shared purpose in particular is buttressed by Justice Frankfurter’s criticisms of rote application of in pari materia that confine their inquiry to statutory text.219 There is no shared text between the statutes concerning corporate liability. In fact, there is such vast textual difference that the Court “unanimously concluded in Mohamad that the ATS ‘offers no comparative value’ in ascertaining the scope of liability under the TVPA.” 220 Similarly, sitting en banc in Sarei v. Rio Tinto, PLC, the Ninth Circuit found that the ATS contained “no such language” as the TVPA frustrated comparison.221 Nor is there text indicating comparison was intended. And, as discussed previously, it is established practice that where a statute is placed in the U.S. Code by the OLRC should not be given

216 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1433–34 (2018) (Sotomayor, J., dissenting). 217 See infra note 237 and accompanying text (articulating the Jesner plurality’s agreement with Sosa on this point). 218 See supra note 143 and accompanying text. 219 United States v. Monia, 317 U.S. 424, 432 (1943) (Frankfurter, J., dissenting) (“The meaning of such a statute cannot be gained by confining inquiry within its four comers. Only the historic process of which such legislation is an incomplete fragment—that to which it gave rise as well as that which gave rise to it—can yield its true meaning.”). 220 Jesner, 138 S. Ct. at 1432 (Sotomayor, J., dissenting) (quoting Mohamad v. Palestinian Auth., 566 U.S. 449, 458 (2012)). 221 671 F.3d 736, 748 (9th Cir. 2011) (en banc).

318 New York University Journal of Law & Liberty [Vol. 14:264

any weight by courts absent clear direction regarding placement from Congress. 222 Finally, the statutes are nowhere close to contemporaneous, and the temporal direction of analogy is opposite that which an inquiry oriented towards discerning the meaning of a statute at its enactment should follow.223

2. Subsequent Legislative History A further criticism of the practice of looking to analogous statutes arises from the Court’s increasing hesitance to give interpretive weight to subsequent legislative history. This trend is of relatively recent vintage. As Eskridge notes, [t]he Burger Court “was often willing to consider post-enactment legislative signals,” as it did, for example, in a case involving the Voting Rights Act of 1965.224 However, the Rehnquist Court “[n]eglect[ed]” and treated subsequent legislative history with “open hostility” and “contempt.” 225 The Rehnquist Court referred to subsequent legislative history as a “hazardous basis” for determining a prior Congress’s intent. 226 Justice Scalia, concurring in Sullivan v. Finkelstein, lambasted arguments concerning subsequent legislative history and argued they did not even warrant mention “in a footnote.” 227 Likewise, the Ninth Circuit has characterized

222 See supra note 137 and accompanying text. 223 Cf. supra note 214 and accompanying text. 224 Eskridge, supra note 169, 79–80 (citing United States v. Bd. of Comm’rs, 435 U.S. 110, 118 (1978)). 225 Id. at 83. 226 Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (“[S]ubsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.” (quoting United States v. Price, 361 U.S. 304, 313(1960))). 227 496 U.S. 617, 632 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote.”).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 319

subsequent legislative history as effectively useless in determining a prior Congress’s intent.228 But is such a criticism even apt? The obvious counterargument is that the ATS and TVPA are distinct statutes, and thus to characterize the TVPA as subsequent legislative history of the ATS neglects the fact that the TVPA went through the Article 1, Section 3 lawmaking process. Yet this distinction is frustrated by reference to the Jesner plurality’s own characterization of the TVPA as being “under the ATS” and representing Congress’s formulation of the appropriate scope of a cause of action under the ATS. 229 Indeed, this distinction seems malleable (or to break down entirely) in practice. The Jesner plurality cannot have its cake and eat it too: Clearly the TVPA did not directly amend the ATS, and thus arguments to the contrary necessarily depend upon subsequent legislative history—as the Jesner plurality’s own references to the TVPA’s legislative history, despite their inaccuracies, demonstrate.

3. “Looking Over A Crowd?” Analogy and Judicial Discretion Related to the subsequent legislative history critique is the question of whether looking to analogous statutes will tend to increase, rather than constrain, judicial discretion. The argument that more sources will tend to increase discretion often relies upon a quip attributed to the late Judge Harold Leventhal of the D.C. Circuit: Relying upon legislative history is like “looking over a crowd and

228 See Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1223 (9th Cir. 2012) (Kozinski, J.) (“[T]he acts of a subsequent legislature tell us nothing definitive about the meaning of laws adopted by an earlier legislature.”). But see id. at 1227 n.3 (Ikuta, J., concurring in part and dissenting in part) (“[I]n determining whether a statute is ambiguous, we must construe the current version of the law, not what it used to be.” (citations omitted)). 229 See supra note 130 and accompanying text.

320 New York University Journal of Law & Liberty [Vol. 14:264

picking out your friends.” 230 However, a facile analysis solely asserting that looking to additional sources will ipso facto increase discretion by giving judges more sources to look at is insufficient. As Adam M. Samaha argues, this idea is, “[a]s a logical matter . . . incorrect without more.” 231 Indeed, Samaha’s logic testing, based upon a simple interpretation model, suggests that if judges are not able to “spin” or “cherry pick,” increasing the number of sources will in fact “drive down the probability that all sources will cancel out into uncertainty and yield discretion.”232 Nonetheless, the critique that this practice tends to increase judicial discretion remains viable. The critique may not be viable in other contexts—such as in borrowing of statutes of limitations, where there is at least marginally greater clarity in how to identify analogous statutes—but, in context of the ATS, it is viable due to the lack of clarity regarding interpretive framework. Effectively, the practice of looking to analogous statutes allows courts to circumvent resolving lingering uncertainties at Sosa Step One and instead conduct a free-form analysis into what the most analogous statute is. In such an unstructured environment, risk of spinning and cherry picking is rampant. Indeed, this is precisely what the Jesner dissent persuasively argues the plurality did: spin by overstating the degree to which the ATS is intertwined with the TVPA and cherry pick by facilely dismissing the ATA as a comparison—despite it directly pertaining to the claim at issue—due to a difference in plaintiff class

230 See Adam M. Samaha, Looking Over A Crowd—Do More Interpretive Sources Mean More Discretion, 92 N.Y.U. L. REV. 554, 556 & n.2 (2017). As Samaha notes, this quote stems from an article by Patricia Wald in which she cites the quote to a conversation with Judge Leventhal and has been subsequently invoked in several cases, including Exxon v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). See id. at 556 n.2 (citing Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983)). 231 Samaha, supra note 230, at 558. 232 Id.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 321

(which as the dissent notes likewise undermines analogy to the TVPA).233 Thus, the critique may be viably maintained not because looking to analogous statutes ipso facto increases discretion, but rather because the lack of clarity regarding how to select analogous statutes, left by Sosa’s uncertainties on uniform vs. norm-by-norm analysis, leaves judges free to cherry-pick and spin. Samaha’s research highlights an important caveat to this critique though: Where rules for interpretation are lacking, “the process would be saturated with discretion regardless of how many interpretive sources were available.”234 Thus, to better state this Note’s critique: By changing Sosa Step Two’s more formal inquiry as to whether Congress has occupied the field regarding a particular norm into an unbounded inquiry as to what an analogous statue does and rote incorporation of that statute’s approach, this practice increases judicial discretion by transmogrifying analysis from a relatively clear inquiry established in precedent into a comparatively ruleless exercise in judicial policy-making.

III. EVALUATING THE PRACTICE IN CONTEXT OF THE ATS Having established that neither the cases the Jesner plurality cites, nor Sosa, nor precedent on borrowing statutes of limitations, nor established modes of statutory interpretation support the practice of statutory analogy, this Part turns to what one might characterize as the last hope for the practice: that something particular to the ATS context justifies its usage. Justice Kennedy made just such a claim, arguing that the area being “fraught with foreign-policy consequences” and general practice “in the realm of international law … bei[ng] to look for legislative guidance” justifies

233 See supra notes 151–152 and accompanying text. 234 Samaha, supra note 230, at 582.

322 New York University Journal of Law & Liberty [Vol. 14:264

this practice.235 However, as this Part demonstrates, analysis of the ATS’ history and purpose, its interpretation in relation to the TVPA, and continuing inconsistencies in interpretation of it in fact discourages rather than supports statutory analogy here.

A. THE HISTORY AND PURPOSE OF THE ATS DISCOURAGE STATUTORY ANALOGY The precise purpose of the First Congress in enacting the ATS has been hotly disputed.236 However, it is unnecessary for this Note to delve into such disagreements. The purpose stated by the Jesner plurality itself, quoting Sosa, suffices to demonstrate that statutory analogy is inappropriate:

This history teaches that … [t]he principal objective of the statute, when first enacted, was to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another

235 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018) (plurality opinion). 236 Some argue the ATS’ purpose was to address a broader range of offenses and emphasize foreign relations motivations. See, e.g., Anthony J. Bellia Jr. & Bradford R. Clark, Two Myths About the Alien Tort Statute, 89 NOTRE DAME L. REV. 1609 (2014) (arguing that courts have erred in accepting two myths regarding the ATS: that protecting ambassadors was one of its original purposes and that it was solely meant to cover the three “Blackstone crimes”); Anthony J. Bellia Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. CHI. L. REV. 445, 449 (2004) (elaborating the ATS’ strategic utility in 1789 to the U.S., which was a “weak nation seeking to avoid conflict with other nations”); Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT’L L. 461, 464 (1989) (“[T]he [ATS] was a straightforward response to what the Framers understood to be their duty under the law of nations.”). Others contend its purpose was quite narrow. See, e.g., Thomas Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 COLUM. L. REV. 830, 836 (2006) (“[T]he ATS was enacted to allow aliens to sue in federal district court for only one of the three violations Sosa identified, namely transgressions of safe conducts.”). See generally Bradley, supra note 52, at 590 n.18 (collecting sources addressing the ATS’ origins and purpose).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 323

nation to hold the United States responsible for an injury to a foreign citizen.237 As such, from its origin the ATS was uniquely concerned not just with foreign affairs impacts, but specifically those that might arise from failure to provide an adequate forum to aliens. Indeed, the majority in Doe v. Exxon Mobil Corp. expressly identified the tension between the intent of Congress in enacting the ATS and then-judge Kavanaugh’s statutory analogy argument. To then-Judge Kavanaugh’s assertion that allowing aliens to bring claims against corporations for torture and extrajudicial killing but not allowing Americans to do so would be “odd and incongruous,”238 the Exxon majority responded that “such an argument is better addressed to Congress inasmuch as the ATS was designed to afford greater jurisdictional protections to aliens.” 239 Thus, even when (1) analogizing to the TVPA (arguably the statute most explicitly related to the ATS), (2) accepting the dubious conclusion that the TVPA indicated any congressional intent regarding the scope of a claim under the ATS, and (3) considering a case the subject matter of which the TVPA covers (i.e., torture or extrajudicial killing), there is clear inter-temporal conflict in congressional intent. Simply put, the analogous statutes are not analogous enough: The ATS was specifically designed to address concerns of aliens, while Congress had quite different aspirations in enacting both the TVPA and ATA.

237 Jesner, 138 S. Ct. at 1397 (plurality opinion) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 715–19 (2004)). 238 See supra Section I.B.2. 239 Doe v. Exxon Mobil Corp., 654 F.3d 11, 56 (D.C. Cir. 2011) (citing id. at 87 (Kavanaugh, J., dissenting)).

324 New York University Journal of Law & Liberty [Vol. 14:264

B. THE ATS-TVPA EXTRATERRITORIALITY INCONSISTENCY Differing outcomes on extraterritorial application between the ATS and TVPA further undermine the practice of looking to analogous statutes in this context. Though, as discussed in Section II.B, cases importing the TVPA’s statute of limitations on to ATS claims at least facially support this practice, 240 precedent on extraterritorial application of the TVPA seems to undercut this practice. It seems difficult to reconcile looking to the TVPA to preclude corporate liability in context of the Kennedy plurality’s language endorsing the TVPA as Congress’s “considered judgment of the proper structure for a right of action under the ATS”, and that, following Kiobel, the Eleventh and Second Circuits (in Chowdhury and Drummond, respectively) and at least one district court have decided that the TVPA applies extraterritorially. 241 Interestingly, Justice Kennedy’s concurring opinion in Kiobel directly references the TVPA as a statute in which Congress addressed “serious concerns with respect to human rights abuses” and seemed to praise the majority for leaving that question open. 242 Indeed, Justice Kennedy’s concurrence along with Justice Breyer’s, “expressing the opinions of five Justices, reflected the view that the [TVPA] applied to human

240 See supra note 198 and accompanying text. 241 See Chowdhury v. WorldTel Bangladesh Holding, Ltd., 746 F.3d 42, 51 (2d Cir. 2014) (concluding presumption against extraterritoriality does not apply to the TVPA); Doe v. Drummond Co., 782 F.3d 576, 601–02 (11th Cir. 2015) (“Although we have not before had occasion to do so, we hold now that the TVPA applies extraterritorially. The text of the TVPA itself indicates that actions may arise from conduct occurring outside the United States.”); see also Boniface v. Viliena, 338 F. Supp. 3d 50, 61 (D. Mass 2018) (same). 242 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 125 (2013) (Kennedy, J., concurring).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 325

rights abuses committed abroad.”243 Thus, it is perhaps unsurprising that the Court denied certiorari in both Chowdhury and Drummond.244 If, as Justice Kennedy’s plurality opinion asserts, the TVPA reflects “Congress’ considered judgment of the proper structure for [an ATS] action” and the TVPA not allowing corporate liability is “all but dispositive”245 with regard to the ATS on that issue—assertions central to the appropriateness of statutory analogy in Jesner—how can the same not be true for extraterritoriality? It would seem that either the Kennedy plurality’s assertion of binding analogy between the TVPA and ATS must be flawed, or that there is something special about the presumption against extraterritoriality that makes it distinguishable from corporate liability. In fairness, the latter possibility seems to find some support in Morrison’s oft-quoted statement that “[w]hen a statute gives no clear indication of an extraterritorial application it has none.” 246 On its face, this language would seem to suggest a primarily textual inquiry that—given the ATS’ lack of language concerning extraterritoriality—would make it distinguishable. However, the majority in Morrison went on to respond to the concurrence’s assertion that its decision “impermissibly narrowed the inquiry” by stating that “[a]ssuredly context can be consulted as well.”247 Thus, statutory context is reintroduced to the analysis and assuredly statutory analogy could be relevant. This could still arguably be

243 14A WRIGHT & MILLER, supra note 7, § 3661.4 (citing Kiobel, 569 U.S. at 127 (Breyer, J., concurring)). 244 Doe v. Drummond Co., 136 S. Ct. 1168 (2016) (denying certiorari); Khan v. Chowdhury, 574 U.S. 958 (2014) (same). 245 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403–04 (2018) (plurality opinion). 246 Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 255 (2010); but see id. at 280 (Stevens, J., concurring) (stating that while this dictum “makes a nice catchphrase, the point is overstated. The presumption against extraterritoriality can be useful as a theory of congressional purpose, a tool for managing international conflict, a background norm, a tiebreaker. It does not relieve courts of their duty to give statutes the most faithful reading possible.”). 247 Id. at 265.

326 New York University Journal of Law & Liberty [Vol. 14:264

distinguished on the basis that the presumption against extraterritoriality comprises a higher bar to overcome by requiring such an intent be “clearly expressed” by Congress.248 Nonetheless, and on the whole, the seeming majority on the Supreme Court and decisions of several circuits that the TVPA applies extraterritoriality seems to cast cold water on the Jesner plurality’s assertions that the contours of the TVPA should be binding as to the ATS. Indeed, it highlights how, in practice, such reasoning by analogy is suspect as a form of judicial policymaking by importing limitations from the TVPA upon the ATS but declining to import ways in which the TVPA could expand ATS jurisdiction (i.e., extraterritorial application).

C. LINGERING UNCERTAINTIES UNDERMINE STATUTORY ANALOGY Clearly statutory analogy has been invoked as an argument in the alternative both by Justice Kennedy and then-Judge Kavanaugh. The need to even do so is primarily a result of the Court’s continued unwillingness or inability to reach a majority resolving key uncertainties in interpretation of the ATS. As noted in Part I, at Sosa Step One these include whether a norm-by-norm approach is called for or whether corporate liability is to be assessed as a norm of its own. And at Step Two they include whether field preemption is effectively the only way for Congress to void a norm and, as with Step One, whether corporate liability is to be assessed as a norm of its own or whether the appropriate inquiry is whether corporate liability is available for the particular substantive customary international law violation at issue. 249 In the language of borrowing of statutes of limitations, this issue could be phrased as whether to

248 Id. at 255 (quoting E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). 249 See supra text accompanying note 74.

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 327

characterize claims under a statute uniformly or to analogize claim- by-claim. Without determining this issue at Step One, courts’ adoption of a position regarding whether to seek uniformity or proceed norm- by-norm lacks conceptual foundation. The position adopting a uniform approach significantly departs from Sosa’s guidance to look to whether Congress had occupied the field and likewise departs from the norm-by-norm approach visible in Sosa at Step One. However, as noted previously, a seeming majority of the Court now would seem to support at least some limited form of a norm-by-norm approach. The four-Justice dissent clearly adopted a norm-by-norm approach in arguing the ATA was a superior analogy to the TVPA. Likewise, by refusing to extend analogy to the TVPA outside of claims for torture or extrajudicial killing under the ATS, then-Judge Kavanaugh embraced a norm-by-norm approach to analogy.250 In this context, and particularly with parties before the Court in Nestlé expressly adopting Jesner’s statutory analogy argument, 251 analysis of whether a norm-by-norm approach can pass muster is especially warranted. Certainly, such an approach is closer to Sosa’s guidance to look for whether Congress had explicitly voided the

250 Similarly, at Step One then-Judge Kavanaugh emphasized that the question in Exxon was not whether corporate liability was a customary international law itself, but rather whether customary international law “impose[s] liability against corporations for aiding and abetting torture, extrajudicial killing, or prolonged detention.” Doe v. Exxon Mobil Corp., 654 F.3d 11, 82 (D.C. Cir. 2011). As then-Judge Kavanaugh himself recognized—and as would make sense if one believed a preference against allowing corporations to be defendants in transnational human rights litigation impacted his decision—this constitutes a higher bar than just whether customary international law allows corporate liability. Id. at 83 (“[T]here is no corporate liability in customary international law, much less corporate liability for violations of the norms alleged here.” (emphasis added)). Note as well then-Judge Kavanaugh’s requirement that customary international law not just allow liability against corporations generally for violation of the norm-at-issue, but that it specifically allow corporate liability with regard to “aiding and abetting” that norm—thus attempting to inch the courthouse door even closer to being altogether shut. Id. at 82. 251 See supra notes 165–167 and accompanying text.

328 New York University Journal of Law & Liberty [Vol. 14:264

norm or implicitly done so by occupying the field than the Jesner plurality’s attempt to apply congressional limitations on one torture cause of action to a terrorism claim. However, it still fails to pass muster: Sosa’s direction to check for field preemption is a higher bar than statutory analogy. Some shared subject matter is likely not enough to justify application of in pari materia given lack of shared text, lack of text directing a comparison, differing purposes, non- contemporaneity, and limitations of a later statute being imported onto a former. And criticisms for this effectively constituting reliance upon subsequent legislative history remain persuasive.252

CONCLUSION As Justice Gorsuch aptly put it in Jesner: “Any attempt to decipher a cryptic old statute is sure to meet with challenges.” 253 Analysis of the deeply divided ATS caselaw confirms these general difficulties. But, this Note has shown that the Jesner plurality’s attempt to import limitations from “analogous” statutes meets with more challenges than most. Part I demonstrated that the practice fails to find justification in Sosa and is discouraged by the legislative history of the TVPA. Part II illustrated a host of issues that arise from close analysis of the very cases the Jesner plurality cited in support, comparison to borrowing of limitations periods, and analysis of statutory interpretation literature and precedent. Finally, Part III showed the practice does not fit with the ATS’ purpose, is prone to criticism for neglecting existing precedent rejecting comparison between the ATS-TVPA, and remains plagued by the underlying uncertainties regarding interpretation of the ATS that the Court has consistently failed to resolve. In sum, the practice tends to obscure rather than clarify in this context, and furthers the potential for

252 See supra Section II.C.2. 253 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1417 (2018) (Gorsuch, J., concurring).

2020] STATUTORY ANALOGY AND CORPORATE LIABILITY 329

cherry-picking, spinning, and otherwise outcome-based decision- making rather than constraining it. Let us understand Jesner’s invocation of statutory analogy for what it is: an internally inconsistent attempt to resolve the pesky corporate liability issue etched against the Court’s continued inability to form a majority on the questions that should in fact govern the inquiry. All this is in no way to dispute that courts should be faithful to Congress’s intent. But courts should not be so subservient that they must search for the metaphorical crumbs from the congressional table—as one might characterize the Jesner plurality’s usage of statutory analogy. This is particularly so because, even in this supposedly deferential effort, courts are effectively unconstrained in ignoring or spinning analogs they find distasteful.254 Indeed, where there is no evidence Congress intended statutes to be read together, employing statutory analogy as a grounds for decision expands rather than constrains judicial discretion by allowing courts to impose limitations where Congress could have expressly done so but chose not to.255 As such, the Court should decide Nestlé and future ATS cases without relying on the deeply flawed statutory analogies that this Note has problematized. Lower courts hearing ATS cases should not validate such statutory analogy arguments, but rather continue to make decisions on the key issues left unresolved by Sosa, Kiobel, and Jesner—and those perhaps likely to be left unresolved by Nestlé— according to their best understandings of those opinions. Circuit splits on these issues will almost certainly continue to fester, and thus provide opportunities for review by the Court. The Court, as it has done in Nestlé, should take those opportunities because these unresolved issues continue to incur substantial litigation costs and

254 See supra Section I.C.1. 255 See supra text accompanying note 121.

330 New York University Journal of Law & Liberty [Vol. 14:264

leave Congress, if it wished to amend the ATS, without a clear understanding of what the statute currently allows. Finally, if the Court does not resolve these issues or resolves them contrary to Congress’s wishes, Congress should attempt to inflect clarity both regarding the scope of ATS liability and congressional intent as to how statutes in this area should be read in relation to each other.