Determining Which Human Rights Claims Touch and Concern the United States: Justice Kennedy\u27s Filartiga

If statutes were zombies, the Alien Tort Statute of 1789 (ATS) would lead the undead who walk among us. By one conventional narrative, the statute arose from the misty eighteenth-century murk, then lay moribund for nearly two centuries until 1980, when the Second Circuit breathed a strange new life into it with Filartiga v. Pena-Irala. That decision then remained a monstrous curiosity--generative more academic conferences than cases and more awards of tenure than damages--until 1984, when the Court of Appeals for the District of Columbia Circuit decided Tel-Oren v. Libyan Arab Republic. The three-way split among the panel in Tel-Oren suggested that there was no consensus that Filartiga had been rightly decided, and the death watch began in earnest, even as the years passed and jurisdiction was sustained in numerous cases that fit the Filartiga model. This issue of the Notre Dame Law Review, in assessing the impact of Kiobel v. Royal Dutch Petroluem, marks the thirtieth anniversary of the statute\u27s first premature obituary

The Role of International Law As a Canon of Domestic Statutory Construction

From the beginning of our constitutional life, the Supreme Court has articulated principles that structure the juridical relationship between international law and domestic law. These principles purportedly offer rules of decision for resolving in domestic courts the potential in-consistencies between external and internal sources of law, and they do so with the surface simplicity of axioms. Treaties, for example, cannot trump constitutional norms.\u27 Customary international law can provide a rule of decision at least in the absence of controlling legislative or executive acts. In the case of an irreconcilable conflict between a treaty and a statute, the latter-in-time prevails. When Congress incorporates conventional or customary norms into a statute, those norms become directly enforceable and in the absence of any other applicable principle, United States statutes should be read where fairly possible so as not to violate international law. These principles have been criticized variously as innocuous, anomalous, and asymmetrical.\u27 But they also reflect the Court\u27s insistence hat domestic and international law be accommodated, not necessarily as equals, but as two legitimate sources of norms binding on the United States and enforceable in its courts. Doctrinal purity may have been sacrificed, but the Court\u27s accommodationist imperative has had the advantage of avoiding both dualist and monist extremes. As a result of the Supreme Court\u27s approach, the debate persists about the proper way to characterize the relationship between international and domestic law in the United States

Role of Matrix Metalloproteinase 13 in Both Endochondral and Intramembranous Ossification during Skeletal Regeneration

Extracellular matrix (ECM) remodeling is important during bone development and repair. Because matrix metalloproteinase 13 (MMP13, collagenase-3) plays a role in long bone development, we have examined its role during adult skeletal repair. In this study we find that MMP13 is expressed by hypertrophic chondrocytes and osteoblasts in the fracture callus. We demonstrate that MMP13 is required for proper resorption of hypertrophic cartilage and for normal bone remodeling during non-stabilized fracture healing, which occurs via endochondral ossification. However, no difference in callus strength was detected in the absence of MMP13. Transplant of wild-type bone marrow, which reconstitutes cells only of the hematopoietic lineage, did not rescue the endochondral repair defect, indicating that impaired healing in Mmp13−/− mice is intrinsic to cartilage and bone. Mmp13−/− mice also exhibited altered bone remodeling during healing of stabilized fractures and cortical defects via intramembranous ossification. This indicates that the bone phenotype occurs independently from the cartilage phenotype. Taken together, our findings demonstrate that MMP13 is involved in normal remodeling of bone and cartilage during adult skeletal repair, and that MMP13 may act directly in the initial stages of ECM degradation in these tissues prior to invasion of blood vessels and osteoclasts

Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts

In offering a form of civil redress to the victims of international human rights violations, litigation under the Alien Tort Statute ( ATS ) has come to reflect in microcosm the ways that international law and practice have changed in the last half century. Specifically, the successful ATS cases since the Second Circuit\u27s seminal decision in Fildrtiga v. Peia-Irala illustrate the blurring of certain structural distinctions that had long given international law its characteristic shape, especially the distinctions between public and private international law, between treaties and custom, between state and nonstate actors, between international and domestic law, and between lex lata and lex ferenda. But in the aftermath of the epochal attacks of September 11, 2001, the modest progress made by international human rights litigators in Fildrtiga and its progeny has been threatened by the same forces that undermine the recognition of domestic civil rights, particularly through the executive branch\u27s broad claims to law-free zones of power. The broadest critiques of the ATS have been that the private litigation of human rights violations complicates the war on terrorism, that it amounts to plaintiffs\u27 diplomacy by interfering with executive branch prerogatives in foreign affairs, and that it threatens to impose a uniquely American form of liability on multinational corporations for their alleged complicity in human rights violations by the governments with which they do business. The narrower critique has centered on the more technical assertion that the ATS is purely jurisdictional and provides no private right of action; in other words, Congress must adopt additional legislation implementing an international human rights norm before it can be litigated under Section 1350. The ATS has also provided fresh context for decades-old battles over the constitutional status of international law, the scope of the self-executing treaty doctrine, and the problem of proving the content of customary international law

Determining Which Human Rights Claims Touch and Concern the United States: Justice Kennedy\u27s Filartiga

If statutes were zombies, the Alien Tort Statute of 1789 (ATS) would lead the undead who walk among us. By one conventional narrative, the statute arose from the misty eighteenth-century murk, then lay moribund for nearly two centuries until 1980, when the Second Circuit breathed a strange new life into it with Filartiga v. Pena-Irala. That decision then remained a monstrous curiosity--generative more academic conferences than cases and more awards of tenure than damages--until 1984, when the Court of Appeals for the District of Columbia Circuit decided Tel-Oren v. Libyan Arab Republic. The three-way split among the panel in Tel-Oren suggested that there was no consensus that Filartiga had been rightly decided, and the death watch began in earnest, even as the years passed and jurisdiction was sustained in numerous cases that fit the Filartiga model. This issue of the Notre Dame Law Review, in assessing the impact of Kiobel v. Royal Dutch Petroluem, marks the thirtieth anniversary of the statute\u27s first premature obituary

Determining Which Human Rights Claims Touch and Concern the United States: Justice Kennedy\u27s Filartiga

If statutes were zombies, the Alien Tort Statute of 1789 (ATS) would lead the undead who walk among us. By one conventional narrative, the statute arose from the misty eighteenth-century murk, then lay moribund for nearly two centuries until 1980, when the Second Circuit breathed a strange new life into it with Filartiga v. Pena-Irala. That decision then remained a monstrous curiosity--generative more academic conferences than cases and more awards of tenure than damages--until 1984, when the Court of Appeals for the District of Columbia Circuit decided Tel-Oren v. Libyan Arab Republic. The three-way split among the panel in Tel-Oren suggested that there was no consensus that Filartiga had been rightly decided, and the death watch began in earnest, even as the years passed and jurisdiction was sustained in numerous cases that fit the Filartiga model. This issue of the Notre Dame Law Review, in assessing the impact of Kiobel v. Royal Dutch Petroluem, marks the thirtieth anniversary of the statute\u27s first premature obituary