Academic journal article Argumentation and Advocacy

A Critique of Jim Aune's Rhetoric, Legal Argumentation, and Historical Materialism

Academic journal article Argumentation and Advocacy

A Critique of Jim Aune's Rhetoric, Legal Argumentation, and Historical Materialism

Article excerpt

No nation in the world has ever pretended to be the custos morum (guardian of the morals) of the whole world.

--Chief Justice Roberts in Kiobel, citing Justice Story (Kiobel, 2013, p. 12). (1)

In December of 1792, America's first Secretary of State, Thomas Jefferson, was dealing with some thorny foreign policy problems. He was hearing complaints that slave catchers from the state of Georgia were being accused by the Spanish of trespassing into Spanish Florida so they could recapture or kidnap slaves. At the same time, the minister of France was lamenting the fact that an American crew aboard some vessel, moored in a harbor of St. Domingo, was enticing Africans on board their ship under pretext of employment (Simpson, 2013). The thriving slave trade created no shortage of domestic and international conundrums for the fledging American nation, and now Jefferson combed through some of the newly minted U.S. constitutional texts to see if there was any rule of law that could be applied to ameliorate the situation.

Jefferson quickly turned his attention to a part of the Judiciary Act of 1789, known as the Alien Tort Statute (ATS), (2) that conferred federal jurisdiction over "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." (3) In spite of the fact that the troubles with the slave traders had nothing to do with any ambassador, Jefferson determined that there was nothing wrong with "enlarging the jurisdiction of the courts," so that they could sustain "indictments and informations on the public behalf, for offences against the law of nations" (quoted in Simpson, 2013, para. 6). For the next several years, American courts served as the venue for a few foreign suits about piracy that were based on the Alien Tort Statute jurisdiction, but after that the ATS became a dormant fragment for almost 200 years.

Beginning in the early 1980s, all of this changed when entrepreneurial lawyers resurrected the tersely worded provisions of the ATS and used them for human rights activism in a variety of contexts. Lawsuits sprang up like weeds as the U.S. federal courts were now being asked to rule on cases that occurred overseas, even in situations where no U.S. citizen or American corporation was directly involved in specifically identifiable conduct (Ku & Yoo, 2013). For more than three decades, the ATS was being interpreted in ways that allowed foreign victims to sue in U.S. courts for internationally recognized human rights violations such as torture, genocide, and crimes against humanity (Bazyler & Green, 2012, p. 25).

Large oil companies, that had what lawyers call "deep pockets," were some of the favorite targets of all of this burgeoning litigation. Foreigners who happened to live in the United States were now suing other foreigners in American courts for alleged violations of international laws that took place overseas. For example, in 1996, the oil company, Unocal, was sued for allegedly aiding and abetting abuses perpetrated by the Myanmar military while constructing a natural gas pipeline, and subsequent ATS cases included civil actions on behalf of children and adults who worked on rubber plantations in Liberia for Bridgestone-Firestone, families of pro-union workers killed by Colombian paramilitaries that supposedly had links to Chiquita, and plaintiffs who tried to sue because of the trafficking of children into Cote d'Ivoire for work on cocoa plantations (Bisom-Rapp, 2013, para. 4). Critics of all of this judicial activism wondered whether the "Delphic ATS" was being read by human rights reformers in ways that had "little or nothing to do with the United States" (Neuborne, 2013, para. 2).

As one might imagine, these various usages of the ATS brought divisive federal district and appellate court decisions in the wake of all of this activism, and in April of 2013, Chief Justice Roberts and the rest of the U. …

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