Correcting an Evident Error: A Plea to Revise Jesner v. Arab Bank, PLC
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. Although commentators have already criticized various aspects of Justice Kennedy’s opinion, one point has not received meaningful consideration and merits correction. In his plurality opinion, 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 longstanding practice and black letter law that the placement of a statutory note in the U.S. Code by the Office of Law Revision Counsel (“OLRC”) does not have any substantive impact on the law’s meaning, interpretation, or application. This error merits correction by the Court for several reasons. Although it undoubtedly influenced Justice Kennedy’s interpretation of the ATS, its implications extend beyond this case. It will affect future ATS and TVPA cases. It also creates uncertainty over the status of the countless statutory notes that populate the federal code. And, it raises constitutional concerns by attaching legal significance to OLRC’s placement decisions.
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