A Thriving Atrocities Practice

After following up on Justice Alito's summer interview, the new birthright-citizenship executive orders, and the Court's record-low approval numbers, we devote the episode to Cisco Systems v. Doe, the Falun Gong surveillance case that closes the door Sosa v. Alvarez-Machain left open for new Alien Tort Statute claims. We try to build a theory of the ATS from first principles — Section 9 of the Judiciary Act of 1789, the law of nations, and the Marbois affair — before running through two decades of the Court narrowing the statute. Then we ask what to make of "door closing" as a phenomenon, from Edwards v. Vannoy to Rucho, and whether the Court would really be stuck if the perfect ATS unicorn finally showed up. Along the way: whether Justice Alito is an I-95 or an Amtrak guy, the seven-case October calendar led by Suncor, Rooker anti-Feldmanism, and a Phoenix bar band called the Blackstone Three.Highlights[00:00:21] Opening: 29 episodes makes a record-breaking season, and the secret to sub-4-hour recording sessions[00:02:28] Justice Alito's WSJ interview with James Taranto: "Obviously I'm here for another term," the vultures, and his high school English teacher's psychoanalysis[00:06:27] How Will became a libertarian: Mr. Flannery, Lexis news alerts for "Ayn Rand," and golfer David Duval[00:09:48] Still no action on the mail-in voting applications; a White House ballroom emergency application expected any day[00:11:15] No rehearing petition in Trump v. Barbara — instead, new executive orders probing the decision's edges[00:15:32] The October calendar: only 7 cases, starting with Suncor — "conservative intuitions in search of a constitutional clause"[00:17:04] Mailbag: Rooker anti-Feldmanism via Lance v. Dennis, and Michael Rosman on whether sex-segregated sports are really "equal opportunity"[00:20:32] Gallup has the Court at 33% approval, a record low — the maximally anti-legitimacy strategy[00:22:35] The main event: Cisco Systems v. Doe — an anonymous person versus a faceless corporation[00:23:16] ATS first principles: Section 9 of the Judiciary Act of 1789, the law of nations as brooding omnipresence, and the Marbois affair[00:37:27] The 1980 revival, Sosa v. Alvarez-Machain, and the door Justice Souter left ajar[00:42:45] Two decades of narrowing: Kiobel, Jesner, Nestlé — and Will's brush with a thriving atrocities practice[00:47:33] Cisco closes the door; the Edwards v. Vannoy parallel, and whether door closing is ever dicta[00:52:33] Door closing as a genre: Vieth v. Jubelirer, Rucho — a Green Bag piece for Richard Re[00:56:36] What about pirates? The Blackstone 3 — the doctrine, and the Phoenix bar band[01:00:18] Implied causes of action, the slow death of Bivens, and the Ex parte Young irony after Trump v. Cook[01:05:19] Scoring the opinion: a win for the Bradley–Goldsmith "Erie algorithm" — or selective originalism?[01:13:33] Sign-off: rate and review — and if we go quiet, Will has been taken by piratesRelevant linksCasesCisco Systems, Inc. v. Doe I — slip opinionTrump v. Barbara — the birthright-citizenship decision the new executive orders are testingSuncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County — the OT26 opener<a target="_blank" class="link" href="https://supreme.justia.com/cases/fe