Correcting an Evident Error: A Plea to Revise Jesner v. Arab Bank, PLC
Georgetown Law Journal Online, Vol. 107, 2018
18 Pages Posted: 8 Aug 2018 Last revised: 16 Nov 2018
Date Written: July 18, 2018
Abstract
In Jesner v. Arab Bank, PLC, the Supreme Court held that foreign corporations are not subject to lawsuits under the Alien Tort Statute (“ATS”). Written by Justice Kennedy, the highly fractured opinion offered several reasons for its holding. Commentators have already criticized various aspects of Justice Kennedy’s opinion. But, one aspect of the opinion has not received any consideration and merits immediate correction by the Court. While interpreting the ATS, Justice Kennedy attached significance to the placement of the Torture Victim Protection Act (“TVPA”) as a statutory note to the ATS in the U.S. Code. In so doing, he disregarded long-standing practice and black letter law that the placement of a statutory note in the U.S. Code does not have any substantive impact on the law’s meaning, interpretation, or application. This error merits correction by the Court for several reasons. While it undoubtedly influenced Justice Kennedy’s interpretation of the ATS in Jesner, it may affect future ATS and TVPA cases. And, more broadly, it raises uncertainty over the status of the countless statutory notes that populate the federal code.
Keywords: Supreme Court, Office of Law Revision Counsel, Torture Victim Protection Act, Alien Tort Statute, Statute
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