Last Term a divided U.S. Supreme Court assumed in Sanchez-Llamas v. Oregon that defendants could invoke such a failure in their criminal cases, yet ruled that proof of failure would not warrant suppression of evidence gathered as a result of that failure. The Court will revisit the question next Term in Medellín v. Texas, in which the defendant's claim is bolstered by a 2004 judgment of the International Court of Justice.
In Jogi the Seventh Circuit turned aside a claim that plaintiff's civil lawsuit could be based on the 1789 Alien Tort Statute, instead looking to ordinary federal question jurisdiction.
The authors of this Insight -- Chimène Keitner, new to the faculty at University of California-Hastings, and Alabama Law Dean Kenneth C. Randall -- warn that "federal question jurisdiction will not necessarily encompass a wider set of potential claims," and add that "as federal case law progressively circumscribes the available causes of action under the" Alien Tort Statute,
plaintiffs may seek to file international law claims in state courts as claims for municipal torts—the very “torts” that the First Congress sought to bring within federal jurisdiction because of their potential implications for international affairs.