Donald J. Kochan

The Unconstitutionality of Class-Based Statutory Limitations on Presidential Nominations: Can a Man Head the Women's Bureau at the Department of Labor?

Donald J. Kochan — Wed, 28 Sep 2011 15:38:53 PDT

Can a man be the Director of the Women's Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women's Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters?

This Article's case study is particularly relevant today, examining just how far Congress can go to limit the discretion of Executive authority. This Article examines instead the statutory ability to, ex ante, limit the President's choice of nominees. It examines the role of the Senate and Congress in the pre-selection criteria for nominees of the President to fill Officer positions within the United States government. Can sex, race, sexual orientation, economic status, or whether a nominee is a member of a particular organization be statutorily mandated (or prohibited) to limit the discretion of Presidential nominations for any particular position for Officers of the United States?

Any such preferences can be taken into account as to whether the Senate will provide its advice and consent to any particular nomination, but it is unconstitutional to place such class-based preferences in statutory, pre-nomination mandates and restrictions. This Article argues that class preferences belong in the decision whether to provide advice and consent and not in pre-nomination statutory restrictions.

This Article uses one example, the pre-nomination, statutory limitation regarding the Women's Bureau at the Department of Labor, to demonstrate the illegitimacy of statutory limitations on the President's nomination power based on class preferences. The place for the invocation of preferences is in the post-nomination/advice and consent process - not in statutory mandates. This Article concludes that the Constitution precludes Congress from placing limitations on the presidential nomination power. Mandatory, statutory pre-nomination limitations are simply beyond the Senate's advice and consent power.

"Learning" Research and Legal Education: A Brief Overview and Selected Bibliographical Survey

Donald J. Kochan — Thu, 14 Apr 2011 11:25:52 PDT

At its core, education is about learning. Every educator, legal or otherwise, must at the same time be both a teacher and a student in the learning enterprise. Luckily, there is a wide literature to help us in these roles and it is growing every day. It should be a goal of every legal educator to appreciate this area of scholarship, understand its breadth and importance, and engage with it in our teaching and writing. This research overview aims to aid the legal educator seeking to learn about learning and access tools for self-improvement. It also provides some preliminary assistance to those researchers beginning to traverse the field on the subject of “learning” and legal education, and it equally serves as a warning of the daunting task that awaits the researcher on that multifaceted subject. This overview and selected bibliography compiles selected sources collected through various searches on legal databases, library collections, and other available sources. The text serves as a guide along the way with some explanatory material to describe the fields. The compilation of these sources will serve independently as a valuable survey, bibliographic collection, and research tool for others (including educators, academic scholars, librarians, students, and lawyers).

Thinking Like Thinkers: Is the Art and Discipline of An "Attitude of Suspended Conclusion" Lost on Lawyers?

Donald J. Kochan — Mon, 28 Mar 2011 04:37:56 PDT

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs.

Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must approach every problem with an open-mind, without a predetermined conclusion. She must overcome the anxiety associated with suspense. One attains “the attitude of suspended conclusion” when developing an art and discipline that quells the impulse for the satisfaction of reaching a conclusion, that accepts an operative state of doubt, and that maintains the patience for careful and thorough inquiry before reaching an eventual conclusion. A conclusion is the end of a reflective process, not an end in and of itself.

Perhaps the insight on this matter seems obvious and straightforward. This Article defends the proposition that this lesson deserves attention precisely because it is so obvious but too often ignored as to make its study intellectual instead. A discipline of following a rule of suspended conclusion can act like a trigger lock for the mind, disabling the tendency to “shoot first and ask questions later.” The rule of suspended conclusion must be engaged before firing the synapses of thought. The Article explains that unpeeling the obviousness of the attitude – to understand its rich core and to see the tendencies that rot its practice – allows us to develop a valuable art and discipline in the thinking process.

The Article includes sections on the educator’s role in “thought”; the importance of developing an appreciation for an art and discipline toward attaining the attitude of suspended conclusion; a brief survey on the research related to psychological tendencies or poor habits that form barriers to the effective adoption – or the positive habitual substitution – of an attitude of suspended conclusion; and wraps up with a discussion of whether lawyers, by the inherent nature of their task, face insurmountable obstacles to developing the discipline of an attitude of suspended conclusion and whether they can exercise the freedom to think like thinkers within their professional obligations. Lawyers certainly face some unique obstacles to adopting an attitude of suspended conclusion, making attention to it all the more important.

While Effusive, "Conclusory" Is Still Quite Elusive: The Story of a Word, Iqbal, and a Perplexing Lexical Inquiry of Supreme Importance

Donald J. Kochan — Mon, 14 Mar 2011 05:47:53 PDT

This Article is a short story about the word “conclusory.” The word is effusive in legal discourse, yet it has been largely elusive to the editors and drafters of dictionaries. Few dictionaries include the word “conclusory”, those that do have only recently adopted it, and the small number of available dictionary definitions seem to struggle to capture the word’s usage in the legal world. This Article explores this definitional perplexity. As the word “conclusory” has taken center stage in the procedural plays of civil litigation with the help of the 2009 U.S. Supreme Court decision in Ashcroft v. Iqbal, the demand for meaning attached to the word is increasingly prevailing on the legal profession.

This Article presents original research and data on the historical use of the word and its lexicographical coverage. It concludes that the inclusion of “conclusory” and its proper definition are long overdue and should be demanded of dictionaries, legal and general. Lawyers need the word and are using it despite suboptimal inclusion or support for its use in reference books. As lawyers will remain increasingly entangled in the word’s meaning after Iqbal, an understanding of the word’s story is critical as its meaning is explored and developed in caselaw especially in the immediate nascent post-Iqbal world.

Given the difficulties of definition, the “conclusory” standard in Iqbal might turn out to be nothing more than – in homage to Justice Stewart’s famous words when discussing the judicial capacity to identify pornography that is not entitled to full First Amendment protection – a “I know it when I see it” standard for review. There is a sense in Iqbal that “conclusory” statements are like procedural pornography so profane and lacking in quality that they are not entitled to protection of otherwise liberal pleading standards. This Article concludes with hope that some guidance can be found to navigate through civil procedure after Iqbal by directed our search for meaning to the process of analogy and contextual comparisons with other past usages of the term “conclusory” to apply to particular cases subject to Iqbal.

"Thinking" Through the Law School Exam: A Deweyan Perspective

Donald J. Kochan — Sat, 12 Feb 2011 13:00:42 PST

John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article is organized around that statement and its applicability to problem solving approaches. This Article’s title, Effective “Thinking” Through the Law School Exam is meant to signal two purposes. Using Dewey’s suspended conclusion concept as an organizing theme, this Article presents one basic set of lessons for thinking through issues that arise regarding the approach to a law school exam. This means that the lessons contained here help exercise thought while taking the exam – to think through the exam approach. The second, more subtle, meaning of the title is that the law school exam can serve as a case study in the effectiveness of certain thinking tools that have much broader application – i.e., we are examining the process of thinking generally through one example of thinking’s application, the law school exam. For that reason, this Article is not your typical “how to” guide, but instead provides guidance critically and generally applicable to the thinking enterprise itself.

Legal Mechanization of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response to Professor Branson with Some Supplemental Thoughts

Donald J. Kochan — Sat, 04 Sep 2010 12:51:10 PDT

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must affirmatively go to help right the perceived wrongs in the world in which they operate. Although these questions could be posed simply as ones of policy or morality, with the injection of the ATS into the discussion they become questions that must be answered by examining the dictates and limits of law. Every expansion of liability, whether it is in terms of the persons or entities who may be sued or the nature of claims recognized as creating legal obligations, should be viewed cautiously.

Black Tuesday and Graying the Legitimacy Line for Governmental Intervention: When Tomorrow is Just a Future Yesterday

Donald J. Kochan — Fri, 25 Jun 2010 13:18:37 PDT

Black Tuesday in October 1929 marked a major crisis in American history. As we face current economic woes, it is appropriate to recall not only the event but also reflect on how it altered the legal landscape and the change it precipitated in the acceptance of governmental intervention into the marketplace. Perceived or real crises can cause us to dance between free markets and regulatory power. Much like the events of 1929, current financial concerns have led to new, unprecedented governmental intervention into the private sector. This Article seeks caution, on the basis of history, arguing that fear and crisis mentality lead to legal reforms that become permanent and may be the result of an irrational reaction. At times of crisis, individuals succumb to increased governmental authority. But, when the real or perceived crisis subsides, many accepted increases in governmental authority empirically tend to be irreversible. Temporary satisfaction can bring long-term consequences. The crux of this cautionary tale is that crises can gray the legitimacy of governmental power and the citizenry’s acceptance thereof.

The Soft Power and Persuasion of Translations in the War on Terror: Words and Wisdom in the Transformation of Legal Systems

Donald J. Kochan — Sun, 20 Jun 2010 14:06:22 PDT

The power of words is the power of persuasion. The exportation of the foundational legal principles that helped form the American republic can serve as instrumental "soft power" tools in the war on terror. Efforts promoting projects like the Arabic Book Program are important vehicles to cross-cultural and cross-lingual international relations. This Article argues that an arsenal of words can be as, or more, powerful than an arsenal of artillery. The West has much to offer, but the rest of the world needs to be able to read it without getting lost in translation. Providing linguistic access to the documents that have spurred American progress economically and in governance can be a valuable tool for international peace and progress. For that effort, translations are key.

Much Ado About Pluralities: Pride and Precedent Amidst the Cacophy of Concurrences, and Re-percolation After Rapanos

Donald J. Kochan et al. — Sun, 20 Jun 2010 13:18:25 PDT

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to explore this topic of concurrences, precedential complexities, and confusion. It addresses these issues by introducing the Marks doctrine's ability to assist jurists and others who are wrangling with precedents latten by pluralities. Part of the precedential system is the signaling function to lower courts, and that signal can be disrupted by plurality opinions, and it analyzes lower courts' reaction to the fractured nature of Rapanos. But plurality decisions may open the door to re-percolation in interpretations. Finally, this Article examines Marks and this situation in relation to judicial motives. The legal treatment of separate opinions may alter incentives to concur rather than join, thus creating the possibility that their nuance on the holding will have greater influence once a case must be applied in the lower courts. Rapanos provides an excellent case study of a fragmented decision in the era of many such decisions. The confusion that it has caused is serious and reflects the limitations of lower courts' ability to apply the Marks doctrine as well as the limitations of the doctrine itself. Thus, while the Marks doctrine creates self-interested incentives to write separately, its limitations act as a check on these incentives. Whether that check is enough to control the pride, prejudice or prudence that causes the Court to issue a fractured decision is questionable. As a result, some plurality decisions are much ado about nothing, but others are a source of ongoing confusion and uncertainty that seriously undermines our system of precedent.

Boyakasha, Fist to Fist: Respect and the Philosophical Link With Reciprocity in International Law and Human Rights

Donald J. Kochan — Sun, 20 Jun 2010 12:55:59 PDT

From Grotius to Hobbes to Locke to an unconventional modern pop-culture manifestation in Ali G, the concept of “respect” has always been understood as important in human interaction and human agreements. The concept of mutual understanding and obligation pervades human interaction, and, for purposes of this Article, international relations. Almost all basic principles in English, United States, and other country’s laws that value human and individual rights have based, over time, the development of their laws on the philosophical principle of respect. So much of common and statutory law is designed to enforce respect for others. The principle question in this Article involves the idea of respect between nations in international reciprocity. Most importantly, it examines who should have the opportunity to enforce potential disrespectful actions in issues of international law and human rights. Due to a trend within the United States where litigation opportunities have allowed private individuals to attempt to enforce within the judiciary the obligations of “international law” for allegedly disrespectful actions, the question becomes whether it is wise to allow nations due respect to allow their citizens to enforce actions contrary to those international obligations. If, indeed, international agreements are between nation-states – reciprocity requires that the decisions to respect them should be made by the “contracting” parties and not third parties. Thus, third party civil litigation based on international agreements (or a nation’s allowance of them) is itself disrespectful.

Symposium Introduction -- Miranda at 40: Applications in a Post-Enron, Post-9/11 World

Donald J. Kochan — Sun, 20 Jun 2010 12:34:17 PDT

The groundbreaking case of Miranda v. Arizona raise[d] questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. This Introduction to the 2007 Chapman Law Review Symposium summarizes the contemporary examination of Miranda's influence, past and present, along with the continuing debate today. The experiences and precedents that have evolved in the past 40 years helps to explore the evolution of the criminal law and procedural dictates set forth in Miranda. Complications with custodial interrogation - and the impulses and incentives involved by both the interrogator and the interrogated - have long been an exploration in law, literature, and other forums. This Introduction sets the stage and summarizes the articles presented herein that provide a valuable contribution to the scholarship on Miranda's evolution and its effects today. Thanks go to all the participants, including: The Honorable Edwin Meese III, Maurice Suh, Keith Bishop, Henry N. Butler, Sherri L. Burr, Marisa S. Cianciarulo, Russell Covey, M. Katherine Baird Darmer, Roman E. Darmer, Steven B. Duke, Jim Fleissner, Mark A. Godsey, Steve Goorvitch, Thomas E. Holliday, Sam Kamin, Linda Keller, Donald J. Kochan, Joan L. Larson, Jeremy M. Miller, Stephen F. Rohde, Lawrence Rosenthal, Ronald J. Rychlak, Paul Shechtman, Ronald Steiner, and J. Kelly Strader. The first panel addressed Miranda and the War on Terror. The second panel focused on Miranda and the Media. The third panel contemplated Miranda and Modern Practice. The final panel examined Miranda and Corporate Crime. Criminal law, criminal procedure, and constitutional law were all revolutionized by Miranda forty years ago, yet its evolution must continue to be discussed and examined.

Runoff and Reality: Externalities, Economics, and Traceability Issues in Urban Runoff Regulation

Donald J. Kochan — Sun, 20 Jun 2010 12:25:23 PDT

It has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these questions form background, the primary emphasis currently anticipated for this presentation is on traceability, collective action, and free rider problems that motivate regulation in this area.

Often runoff is described as non-point source pollution. According to the United States Environmental Protection Agency (EPA), States report that nonpoint source pollution is the leading remaining cause of water quality problems. As a result, determining the origin of certain pollutants becomes very difficult - if you cannot trace them to a certain dumping pipe because the substances simply runoff from a non-point source it becomes far more difficult to identify the originating location of contaminants. This Article will explore these difficulties.

In addition to and in conjunction with federal regulation, most states have implemented plans to control for the contribution of runoff and non-point source pollution to water quality, but it is a still developing area of environmental law. The complexity of this process of regulation, however, is high.

This Article remains largely agnostic and focuses on the complexities and difficulties that must be taken into consideration as regulations develop and are applied in this area. It attempts to identify the metrics, economics, and realities that must underlie the regulation of runoff.

Ripe Standing Vines and the Jurisprudential Tasting of Matured Legal Wines – and Law & Bananas: Property and Public Choice in the Permitting Process

Donald J. Kochan — Sun, 20 Jun 2010 11:59:48 PDT

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials creates perverse incentives for regulators. This Article examines that phenomenon.

In the Heat of the Law, It's Not Just Steam: Geothermal Resources and the Impact on Thermophile Biodiversity

Donald J. Kochan et al. — Sun, 20 Jun 2010 11:26:50 PDT

Significant research has been conducted into the utilization of geothermal resources as a ‘green’ energy source. However, minimal research has been conducted into geothermal resource utilization and depletion impacts on thermophile biodiversity. Thermophiles are organisms which have adapted over millions of year to extreme temperature and chemical compositions and exist in hot springs and other geothermal resources. Their ability to withstand high temperatures makes them invaluable to scientific and medical research. Current federal and California case law classify geothermal resources as a mineral, not a water resource. Acquisition of rights to develop a geothermal resource owned or reserved by the federal government is authorized by the Geothermal Steam Act of 1970 which was designed to promote utilization of geothermal resources. Similarly, current California law promotes the utilization of geothermal resources. While NEPA and CEQA apply in federal and state geothermal resource development respectively, thermophile biodiversity is significantly threatened due to a lack of knowledge and classification of thermophile species. California law under the Public Resources Code provides for the prevention of damage to geothermal deposits, reservoirs and water, but not for the species that live in them. This article will show that current federal and state law applicable to California promotes the over utilization of geothermal resources which threatens thermophile biodiversity.

The Other Side of the Coin: Implications for Policy Formation in the Law of Judicial Interpretation. Book Note: A Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia

Donald J. Kochan — Sun, 20 Jun 2010 10:58:55 PDT

Justice Scalia defends textualism as the only form of interpretation that should govern judicial interpretation of statutes and the Constitution. The book begins with an essay by Justice Scalia establishing the framework of his interpretive model and arguing that his model is mandated to achieve institutional legitimacy in a constitutional system of separated powers and for the protection of democracy. Comments to this essay follow from four distinguished scholars. Each comment is addressed in the final pages by a response from Justice Scalia. This Article presents an overview of Justice Scalia's argument, the arguments embodied in the comments, and discusses Justice Scalia's responses to these arguments. It then sets forth the insights contained in the book on the impact of an accepted method of statutory interpretation on the incentives of legislators in drafting and formulating statutory law. This Article then analyzes those insights and argues that widespread adoption of Justice Scalia's method of statutory interpretation would alter legislative behavior in an advantageous way. Its unique contribution involves a law and economics analysis of the incentives to pad the legislative history with individual interpretations of a law would be severely diminished and why legislatures should find it necessary to use clearer language in statutes. The increase in clarity and decrease in attempts to shape legislation in a specific way would decrease the effectiveness of rent-seeking behavior that is most often injurious to the public interest.

Pages Per Term in the United States Reports and Converting Supreme Court Citations to Term Announced: A Statistical Research Tool

Donald J. Kochan — Sun, 20 Jun 2010 10:30:09 PDT

This short article presents a valuable statistical research tool for those involved in analysis of U.S. Supreme Court opinions. Researchers are made available the data regarding the number of pages that the Supreme Court has written each term and provides an easier basis for identifying this page count with the term announced, which is not otherwise immediately evident from the volume number of the U.S. Reports.

The Blogosphere and the New Pamphleteers

Donald J. Kochan — Sun, 20 Jun 2010 10:19:38 PDT

The future of the free dissemination of information lies in the blog, some may say. The internet has entirely transformed how we receive and consume information. It’s the newest incarnation of information dissemination. From the insights of Alexis de Tocqueville, “Feelings and opinions are recruited, the heart is enlarged, and the human mind is developed only by the reciprocal influence of men upon one another.” Bloggers are a powerful force in the distribution of information and ideas and the creation of communities of conversation.

Throughout history, the dissemination of information, news, opinions, and ideas has continuously transformed. In the 18th Century, there was the town crier, the pamphleteer, hand-billing, leafleting and the emergence of the newspaper. Later, radio and then television emerged in the 20th Century. There has been a constant advancement in the dissemination of information, and the internet is the latest medium.

The blog is essentially today’s version of the pamphleteer. Spontaneous order is at play in this modern marketplace of ideas. The blogosphere is truly a transformation and a popular revolution in the provision of information. This Article presents an historical perspective on information flow and the marketplace for ideas, and argues that the blogosphere is merely a technological transformation and stimulus of traditional pamphleteering – an individual’s opportunity to introduce his ideas to the community.

The Unconstitutionality of Class-Based Statutory Limitations on Presidential Nominations: Can a Man Head the Women's Bureau at the Department of Labor?

Donald J. Kochan — Sun, 20 Jun 2010 10:04:53 PDT

Can a man be the Director of the Women’s Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women’s Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters?

This Article’s case study is particularly relevant today, examining just how far Congress can go to limit the discretion of Executive authority. This Article examines instead the statutory ability to, ex ante, limit the President’s choice of nominees. It examines the role of the Senate and Congress in the pre-selection criteria for nominees of the President to fill Officer positions within the United States government. Can sex, race, sexual orientation, economic status, or whether a nominee is a member of a particular organization be statutorily mandated (or prohibited) to limit the discretion of Presidential nominations for any particular position for Officers of the United States?

This Article uses one example, the pre-nomination, statutory limitation regarding the Women’s Bureau at the Department of Labor, to demonstrate the illegitimacy of statutory limitations on the President’s nomination power based on class preferences. The place for the invocation of preferences is in the post-nomination/advice and consent process – not in statutory mandates. This Article concludes that the Constitution precludes Congress from placing limitations on the presidential nomination power. Mandatory, statutory pre-nomination limitations are simply beyond the Senate’s advice and consent power.

No Longer Little Known But Now a Door Ajar: An Overview of the Evolving and Dangerous Role of the Alien Tort Statute in Human Rights and International Law Jurisprudence

Donald J. Kochan — Sun, 20 Jun 2010 09:36:25 PDT

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law.

This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from some long-awaited guidance from the U.S. Supreme Court, and briefly sets forth the bases for concern that injecting international law into United States jurisprudence presents a number of dangers – on constitutional, legal, policy, and economic grounds. Whether recent developments at the U.S. Supreme Court have curbed the procession of the ATS human rights revolution or simply added further indeterminacy into its progression is still up for debate. There are several problems with this trend toward enforceability and applicability of “customary international law” or otherwise “foreign” law in U.S. courts. The litigation trend has infirmities related to the Constitution, foreign policy, national security, and the public policies supporting economic development and its concomitant effect on the advance of democracy and political liberty. The principal goal of this Symposium Article is to reexamine some of these concerns in light of the ongoing ATS evolution. Only Congress or more concrete guidance from the U.S. Supreme Court can truly define the ATS’s future. Where the ATS door will swing in the future remains uncertain.

Constitutional Structure as a Limitation on the Scope of the "Law of Nations" in the Alien Tort Claims Act

Donald J. Kochan — Sun, 20 Jun 2010 09:21:28 PDT

Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a document in which the government would speak with one voice in its international dealings. Because the judiciary is insulated from political control, court decisions defining international law would not only be improper, but would also frustrate the intent of creating a unitary voice in foreign relations. These questions of proper jurisdictional limits in relation to international law are implicated in the interpretation of the Alien Tort Statute (“ATS”). Jurisdictional questions arise when applying this statute, particularly with reference to the meaning of the "law of nations" and the consequent limits on the judiciary's cognizance over that "law."

This Article examines the ATS and suggests that the application of its jurisdictional grant has been unconstitutionally expanded by the courts and currently places a responsibility and power with the judiciary that is both inconsistent with constitutional structure and dangerously unwise.