Equity of access to adult hospice inpatient care within north-west England.

There is a growing debate about the question of equity of access to hospice and palliative care services. Even countries with relatively well developed palliative care systems are considered to have problems of access and inequity of provision. Despite these concerns, we still lack a relevant evidence base to serve as a guide to action. We present an analysis of access to adult hospice inpatient provision in the north-west region of England that employs Geographical Information Systems (GIS). Measures of the possible demand for, and supply of, hospice inpatient services are used to determine the potential accessibility of cancer patients, assessed at the level of small areas (electoral wards). Further, the use of deprivation scores permits an analysis of the equity of access to adult inpatient hospice care, leading to the identification of areas where additional service provision may be warranted. Our research is subject to a number of caveats�it is limited to inpatient hospice provision and does not include other kinds of inpatient and community-based palliative care services. Likewise, we recognise that not everyone with cancer will require palliative care and also that palliative care needs exist among those with nonmalignant conditions. Nevertheless, our methodology is one that can also be applied more generally

Two Myths About the Alien Tort Statute

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. The Court, however, misperceived the original meaning of the statute by accepting two mistaken historical claims about the ATS advanced by academics and lower courts. First, the Court accepted the notion that incidents involving the rights of ambassadors prompted the First Congress to enact the ATS. Second, the Court endorsed the idea that the ATS was originally meant to cover only three “torts” that corresponded to the three criminal offenses against the law of nations emphasized by Blackstone in his Commentaries— namely, torts against ambassadors, violations of safe conducts, and claims relating to piracy. Both propositions lack substantial support in the historical record and oversimplify the political context in which the statute was enacted. To address incidents involving ambassadors, the First Congress enacted distinct jurisdictional and criminal provisions, including vesting original jurisdiction over claims by ambassadors in the Supreme Court. Indeed, the First Congress enacted specific jurisdictional and criminal provisions to address all three of the “Blackstone crimes.” The ATS served a different purpose. Congress enacted the statute to cover a distinct category of claims by foreign citizens against U.S. citizens for acts of violence that none of these other provisions adequately addressed. The Court’s reliance on these two myths in Sosa and Kiobel led it to misconstrue the ATS and, in certain respects, to unduly narrow the statute’s application. In future cases, the Court should abandon these myths and recognize that the ATS was originally meant to apply (1) to a broader range of tort claims by aliens, and (2) only to claims against U.S. citizens—a jurisdictional limitation that the Court has yet to address

The Law of Nations as Constitutional Law

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these powers on judicial precedent applying the law of nations throughout U.S. history. Several specific powers — such as the powers to send and receive ambassadors, declare war, issue letters of marque and reprisal, and make rules governing captures — can only be understood by reference to background principles of the law of nations. At the time of the Founding, it was reasonably assumed that U.S. courts would recognize the traditional rights of foreign sovereigns under the law of nations as a means of respecting the Constitution’s allocation of specific foreign relations powers to the political branches. Considered in this light, the Supreme Court’s decisions applying traditional principles derived from the law of nations throughout U.S. history have largely — if not exclusively — served to implement this allocation of powers. From this perspective, both the modern and the revisionist positions rest partly on erroneous premises. The modern position errs in claiming that the best way to read Supreme Court precedent applying the law of nations is that federal courts have independent Article III power to adopt such law as federal common law. Consistent with the original public meaning of the Constitution, this precedent is better read to apply certain traditional principles of the law of nations when necessary to uphold the political branches’ recognition, war, reprisal, and capture powers under Articles I and II. The revisionist position overlooks the role of these powers by requiring the political branches or states to adopt traditional principles of the law of nations before courts may apply them. Historical understandings and judicial practice suggest that courts must apply traditional principles of the law of nations not only when the federal political branches or the states have adopted them, but also when Articles I and II require courts to do so. In such instances, the law of nations functions as constitutional la

The Alien Tort Statute and the Law of Nations

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided [t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States. The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took a more restrictive approach. Seeking to implement the views of the First Congress, the Court determined that Congress wished to grant federal courts jurisdiction only over a narrow category of alien claims corresponding to Blackstone\u27s three primary [criminal] offenses [against the law of nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy. In this Article, we argue that neither the broader approach initially endorsed by lower federal courts nor the more restrictive approach subsequently adopted by the Supreme Court fully captures the original meaning and purpose of the ATS. In 1789, the United States was a weak nation seeking to avoid conflict with other nations. Every nation had a duty to redress certain violations of the law of nations committed by its citizens or subjects against other nations or their citizens - from the most serious offenses (such as those against ambassadors) to more commonplace offenses (such as violence against private foreign citizens). If a nation failed to redress such violations, then it became responsible and gave the other nation just cause for war. In the aftermath of the Revolutionary War, Congress could not rely upon states to redress injuries suffered by aliens (especially British subjects) at the hands of Americans. Accordingly, the First Congress enacted the ATS as one of several civil and criminal provisions designed to redress law of nations violations committed by United States citizens. The ATS authorized federal court jurisdiction over claims by foreign citizens against United States citizens for intentional torts to person or personal property. At the time, both the commission of - and the failure to redress - such torts violated the law of nations. The statute thus employed these terms to create a self-executing means for the United States to avoid military reprisals for the misconduct of its citizens. Neither the ATS nor Article III, however, authorized federal court jurisdiction over tort claims between aliens. Indeed, federal court adjudication of at least one subset of such claims - alien-alien claims for acts occurring in another nation\u27s territory - would have contradicted the statute\u27s purpose by putting the United States at risk of foreign conflict. Despite suggestions that the true import of the ATS may never be recovered, the original meaning of the statute appears relatively clear in historical context: the ATS limited federal court jurisdiction to suits by aliens against United States citizens but broadly encompassed any intentional tort to an alien\u27s person or personal property

Supplemental Brief of Professors Anthony J. Bellia Jr. and Bradford R. Clark as Amici Curiae in Support of Respondents

From the Summary of Argument This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether the ATS covers suits between aliens is likely to recur; indeed, the issue is squarely presented by the Ninth Circuit\u27s recent ruling in Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) (en banc), which this Court has held pending disposition of this case. If the Court decides that the ATS does not confer jurisdiction over suits between aliens, then it will likely never have to decide the question of corporate liability under the statute. Today, unlike in 1789, suits by aliens against U.S. defendants can easily satisfy the amount-in-controversy requirement for foreign diversity jurisdiction. Because almost all lawsuits against U.S. corporations would fall within such jurisdiction, foreign plaintiffs would almost never have to rely on the ATS

The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute

Judges and scholars have long debated the legitimacy and contours of federal common law causes of action — actions created neither by Congress nor by state law. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts, including with respect to whether federal courts may recognize an implied right of action for the violation of a constitutional or statutory provision that does not specifically create one. Recently, the power of federal courts to recognize federal common law causes of action has emerged as a key question under the 1789 Alien Tort Statute (“ATS”), a purely jurisdictional statute that the Supreme Court recently has attempted to apply in accordance with its original meaning. In interpreting the ATS to allow federal courts to adjudicate some federal common law causes of action, the Supreme Court has embraced a common — but mistaken — assumption about how early federal courts operated: namely, that early federal courts found causes of action in the ambient unwritten law of the era.This Article explains why this widespread assumption is false. Early federal courts did not rely on ambient common law to supply causes of action in civil suits within their jurisdiction. Rather, early Congresses enacted specific statutes that prescribed the civil causes of action available in federal court. In particular, the Process Acts of 1789 and 1792 defined the causes of action that federal courts could adjudicate in actions at law, as well as in cases in equity and admiralty and maritime jurisdiction. In enacting these laws, Congress did not leave federal courts free to derive causes of action from the common law in the abstract. Rather, Congress specifically adopted several preexisting, well-developed bodies of law for use in federal court — most notably, requiring federal courts to borrow state causes of action in common law cases. While the Process Acts of 1789 and 1792 remained in force, federal courts adjudicated only those causes of action authorized by Congress. This history has important implications for questions of federal judicial power today. The example of the ATS illustrates how a proper understanding of the original source of the cause of action in federal court can both inform and transform debates over the origins and nature of federal judicial power

The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute

Judges and scholars have long debated the legitimacy and contours of federal common law causes of action — actions created neither by Congress nor by state law. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts, including with respect to whether federal courts may recognize an implied right of action for the violation of a constitutional or statutory provision that does not specifically create one. Recently, the power of federal courts to recognize federal common law causes of action has emerged as a key question under the 1789 Alien Tort Statute (“ATS”), a purely jurisdictional statute that the Supreme Court recently has attempted to apply in accordance with its original meaning. In interpreting the ATS to allow federal courts to adjudicate some federal common law causes of action, the Supreme Court has embraced a common — but mistaken — assumption about how early federal courts operated: namely, that early federal courts found causes of action in the ambient unwritten law of the era.This Article explains why this widespread assumption is false. Early federal courts did not rely on ambient common law to supply causes of action in civil suits within their jurisdiction. Rather, early Congresses enacted specific statutes that prescribed the civil causes of action available in federal court. In particular, the Process Acts of 1789 and 1792 defined the causes of action that federal courts could adjudicate in actions at law, as well as in cases in equity and admiralty and maritime jurisdiction. In enacting these laws, Congress did not leave federal courts free to derive causes of action from the common law in the abstract. Rather, Congress specifically adopted several preexisting, well-developed bodies of law for use in federal court — most notably, requiring federal courts to borrow state causes of action in common law cases. While the Process Acts of 1789 and 1792 remained in force, federal courts adjudicated only those causes of action authorized by Congress. This history has important implications for questions of federal judicial power today. The example of the ATS illustrates how a proper understanding of the original source of the cause of action in federal court can both inform and transform debates over the origins and nature of federal judicial power

Supplemental Brief of Professors Anthony J. Bellia Jr. and Bradford R. Clark as Amici Curiae in Support of Respondents

From the Summary of Argument This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether the ATS covers suits between aliens is likely to recur; indeed, the issue is squarely presented by the Ninth Circuit\u27s recent ruling in Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) (en banc), which this Court has held pending disposition of this case. If the Court decides that the ATS does not confer jurisdiction over suits between aliens, then it will likely never have to decide the question of corporate liability under the statute. Today, unlike in 1789, suits by aliens against U.S. defendants can easily satisfy the amount-in-controversy requirement for foreign diversity jurisdiction. Because almost all lawsuits against U.S. corporations would fall within such jurisdiction, foreign plaintiffs would almost never have to rely on the ATS

The Political Branches and the Law of Nations

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, but largely overlooked, predicate - that the political branches were free to make law in derogation of the law of nations, and that such law would bind U.S. courts as the supreme law of the land. In this Article, we explain how Supreme Court decisions applying the law of nations necessarily presupposed that the political branches may depart from the law of nations in their respective constitutional powers. Because decisions regarding when and whether to adhere to - or depart from - the law of nations “are rather questions of policy than of law,” the Constitution’s allocation of powers assigned such decisions to the political branches of the federal government. In addition, we offer a separation of powers rationale for why the Court has sometimes limited executive power according to the law of nations while leaving Congress free to depart from such law. On this account, judicial enforcement of the law of nations against the Executive Branch appears to track the Court’s understanding of the Constitution’s allocation of powers between Congress and the President. Because the Constitution assigns all foreign affairs powers to Congress and the President, however, the Court has never suggested that courts could enforce the law of nations to constrain the collective constitutional power of the political branches