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International Human Rights in American Courts

In 1984, in Tel-Oren v. Libyan Arab Republic, the United States Court of Appeals for the District of Columbia Circuit affirmed the district court’s dismissal of an international human rights case. In the first sentence of his concurring opinion, Judge Edwards wrote, “This case deals with an area of the law that cries out for clarification by the Supreme Court.” Twenty years later, the Supreme Court decided Sosa v. Alvarez-Machain. What, if anything, has the Court clarified?

Judge Edwards referred to tort suits brought by aliens for violations of the law of nations under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350. The ATS originated as Section 9 of the Judiciary Act of 1789. The modern text is little changed from the original. It reads:

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.

There are two jurisdictionally interesting things about Section 9. First, Section 9 was designed to provide easy access to federal court, authorizing jurisdiction in district courts staffed by resident district judges, with no amount-in-controversy requirement. Second, although Section 9 premised jurisdiction on the presence of an alien as a party, it limited the exercise of that jurisdiction to only two specified sources of substantive rights: violations of United States treaties and torts in violation of the law of nations. There was no difficulty with subject matter jurisdiction over suits based on treaty violations. Such suits clearly came within the “arising under” jurisdiction of Section 2 of Article III, and I will not be concerned in this essay with those suits.

“For Profit Charity”: Not Quite Ready for Prime Time

For-profit charity is an intriguing idea. At a high level abstraction it is already proving useful. For-profit entrepreneurs and investors often consider the broader social impact of their work, evaluating projects in terms of social returns as well as investment returns. On the nonprofit side, the concept encourages firms to use incentive compensation to reduce managerial slack and to inject a dose of accountability into a sector that needs it. But as a tax concept—that is, as a category of firms exempt from tax—“for-profit charity” might be unworkable, at least in the form suggested by Professors Malani and Posner.

Thoughts on Treating Union Representation Processes as a Market in Need of Legally Required Disclosure of Information

Imagine a market that looks like this. You’re thinking of buying something—a house, insurance, shares of stock, a prescription drug, or a medical procedure. There is an entity (call it the “anti-seller”) that considers it in its economic interest that you not buy the item. The anti-seller has a great deal of money and all of your working hours to persuade you not to buy. The anti-seller hires lawyers and consultants to run a campaign to block the sale. The consultants require your supervisor at work to meet with you daily in one-on-one meetings to tell you why you shouldn’t buy. The anti-seller makes and screens a movie starring your co-workers in which they explain why it’s a bad idea to buy. Although the law prohibits direct threats, the message underlying anti-seller’s advertising campaign is that your employer may go out of business or be forced to lay you off if you buy the item. Meanwhile, the seller from whom you propose to buy has to work hard even to figure out who you are and where to reach you to speak with you. Unlike the anti-seller, the seller cannot speak with you during your working time, cannot email you at work, and can’t even leave a leaflet on the windshield of your car in the parking lot at work. If union representation is sold in a market, as Professor Bodie suggests, that is what the market looks like.

Is this market a properly functioning one? The one thing that we can say about that market is that it is unlike any other market for the sale of goods or services that exists in America today. The usual problem with information is with sellers who have very good access to consumers and must be forced to provide accurate and material information in the market. In the union market, however, the seller has poor access to the consumer. Moreover, the problem is not just that workers get too little information or that unions as sellers mislead; it is that workers get a huge amount of information, some of it misleading, from an entity who is not the seller but who has an incentive to do everything possible to persuade them not to buy. In addition, unlike in most other markets, the anti-seller has the consumers as a captive audience all day each workday and an unparalleled ability to intimidate the buyer by indirectly threatening his or her job. Unless we accept the dubious contention that only unions are likely to exaggerate or mislead workers about unionization, any genuinely effective regulation the market must deal both with the seller and the anti-seller when it comes to both the quantity and the quality of the information.

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