Wednesday, April 18, 2012

SCOTUS decision in Mohamad v. Palestinian Authority

Today the Supreme Court issued a unanimous decision in Mohamad v. Palestinian Authority (covered earlier here and here). Justice Sotomayor’s opinion begins:

The Torture Victim Protection Act of 1991 (TVPA or Act), 106 Stat. 73, note following 28 U. S. C. §1350, au­thorizes a cause of action against “[a]n individual” for acts of torture and extrajudicial killing committed under au­thority or color of law of any foreign nation. We hold that the term “individual” as used in the Act encompasses only natural persons. Consequently, the Act does not impose liability against organizations.

If you’re looking for tea leaves about how the Court will resolve the companion case of Kiobel v. Royal Dutch Petroleum (which concerns liability of corporations under the Alien Tort Statute, and is now on hold pending supplemental briefing and re-argument), you might be disappointed. Check out this excerpt from Mohamad (Slip Op. at 8):

We also decline petitioners’ suggestion to construe the TVPA’s scope of liability to conform with other federal statutes that petitioners contend provide civil remedies to victims of torture or extrajudicial killing. None of the three statutes petitioners identify employs the term “in­dividual” to describe the covered defendant, and so none assists in the interpretive task we face today. See 42 U. S. C. §1983; 28 U. S. C. §§1603(a), 1605A(c) (2006 ed., Supp. IV); 18 U. S. C. §§2333, 2334(a)–(b), 2337. The same is true of the Alien Tort Statute, 28 U. S. C. §1350, so it offers no comparative value here regardless of whether corporate entities can be held liable in a federal common­ law action brought under that statute.

Justice Breyer wrote a concurring opinion, and Justice Scalia did not join the portion of the Court’s opinion discussing the TVPA’s legislative history (Part III-B).


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I'm interested in what seems to be a contradiction between the five majority voters in Citizen's United and their joining in the unanimous Mohamad decision. The issues may not be precisely the same, but was any effort made to rationalize the core finding the an organization is not an individual but a corporation is a person? Surely, there is a limit to precious parsing of gossamer semantic schisms.

All this gives force to the notion that some justices decide cases on political proclivity and explain them later.

Posted by: Marty Smith | Apr 20, 2012 5:15:36 PM

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