Commercial Litigation and Arbitration

Alien Tort Statute — Sosa Does Not Incorporate Customary International Law, Wholesale, into ATS; RICO — § 1962(b) Elements

From In re Xe Servs. Alien Tort Litig., 2009 U.S. Dist. LEXIS 97994 (E.D. Va. Oct. 21, 2009):

[Alien Tort Statute]

Importantly, Sosa counsels the federal courts to engage in "vigilant doorkeeping" when determining whether to recognize a cause of action under the ATS for five reasons, each of which relates to the need for judicial restraint in importing international norms (if such exist) into American law in the absence of explicit legislative authorization or guidance. 542 U.S. at 729. First, Sosa explains that the common law is no longer understood, as it was at the time of the ATS's enactment, to be a "'transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.'" ... Instead, it is now recognized that "the law is not so much found or discovered as it is either made or created," and that reliance on international norms for the generation of a new common law cause of action would require "a substantial element of discretionary judgment." ... Accordingly, Sosa suggests that just as the understanding of the role of common law has changed, so should courts' willingness to look to international norms to determine the content of that common law. Second, Sosa notes that the Supreme Court's watershed decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), denied the existence of any federal "general" common law, thus emphasizing the importance of "look[ing] for legislative guidance before exercising innovative authority over substantive law." ... Third, Sosa teaches that recent Supreme Court decisions evince a reluctance to infer the existence of an implied federal cause of action where the statute does not explicitly create a cause of action. ... Fourth, Sosa suggests that courts should impose a "high bar" in creating new private causes of action for violations of international law norms because of the risk of "impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." ... Finally, Sosa notes that Congress has repeatedly declined to provide the courts with a "mandate to seek out and define new and debatable violations of the law of nations." ***

It is clear, then, that Sosa does not incorporate customary international law ("CIL") into the body of federal common law in a wholesale manner. Indeed, Sosa directs the federal courts to consider carefully the "practical consequences of making [a] cause of action available to litigants in the federal courts." ... If, as some commentators suggest, federal common law automatically incorporates CIL, then such considerations would be entirely inapposite. See Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869, 892 (2007) (hereinafter Bradley, et al., 2007) (concluding that the analysis prescribed by Sosa is inconsistent with the view that CIL is an inherent part of federal common law); Gerald L. Neuman, The Abiding Significance of Law in Foreign Relations, 2004 Sup. Ct. Rev. 111, 130 (same). Put another way, if CIL were an inherent component of federal common law, there would be no occasion for the federal courts to exercise their "vigilant doorkeeping" duty as envisaged by the Sosa majority.


[RICO § 1962(b)]

Section 1962(b) prohibits the acquisition or maintenance of an interest in or control of an enterprise engaged in interstate or foreign commerce through a pattern of racketeering activity. 18 U.S.C. § 1962(b). Thus, to prevail on a claim alleging a violation of § 1962(b), the RICO plaintiffs must prove (i) that Prince engaged in a pattern of racketeering activity, (ii) that through this pattern, he acquired an interest in, or control of, an enterprise (iii) that engaged in activities affecting interstate or foreign commerce, and (iv) that this acquisition of an interest or control caused property damage to the RICO plaintiffs. See Danielsen v. Burnside-Ott Training Ctr., Inc., 941 F.2d 1220, 1231 (D.C. Cir. 1991); Smithfield Foods, Inc. v. United Food & Commercial Workers Int'l Union, No. 3:07cv641, 2008 WL 2233979 (E.D. Va. May 30, 2008) (Order); Davis v. Hudgins, 896 F. Supp. 561, 567 (E.D. Va. 1995); see also Gregory Joseph, Civil RICO: A Definitive Guide § 13 (2000).

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