# SCOTUS Ends Human Rights Lawsuits Over Atrocities Abroad

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 24 Jun 2026, 36 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/d46c2884-13c2-45ea-8f50-b4730175e6f1/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

International law expert Curtis Bradley, a professor at the University of Chicago Law School, discusses Supreme Court’s decisions basically eliminating human rights lawsuits against companies over atrocities committed abroad, but reviving Exxon’s $1 billion suit against a Cuban conglomerate for operating oil and gas assets seized in 1960. Then Professor Carl Tobias of the University of Richmond Law School, an expert in federal judicial selection, discusses the uphill battle facing Acting Attorney General Todd Blanche in getting confirmed as the US Attorney General. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: This term, the Supreme Court has already decided more cases
[0:12] Speaker 2: split down ideological lines than in the entire previous term,
[0:17] Speaker 2: and on Tuesday, the Court handed down five decisions. Four
[0:21] Speaker 2: were by six to three votes, with the conservative Republican
[0:24] Speaker 2: appointees in the majority and the Liberal Democratic appointees in dissent.
[0:30] Speaker 2: These included rulings that basically went against the religious rights
[0:34] Speaker 2: of inmates, against the rights of Green card holders re
[0:38] Speaker 2: entering the country, against suits for violations of human rights,
[0:43] Speaker 2: but in favor of corporations bringing property claims in Cuba.
[0:48] Speaker 2: Focusing now on one of those decisions, the Court's conservatives
[0:52] Speaker 2: put new limits on lawsuits alleging human rights violations against
[0:57] Speaker 2: corporations over atrocities abroad, effectively putting an end to these
[1:02] Speaker 2: suits over human rights abuses. In a six to three vote,
[1:07] Speaker 2: the court granted tech giant Cisco's bid to shut down
[1:10] Speaker 2: a lawsuit alleging that the company work closely with China
[1:14] Speaker 2: to create the country's Golden Shield surveillance system, which allowed
[1:19] Speaker 2: officials to identify, apprehend, and torture members of the Fello
[1:24] Speaker 2: Goong spiritual movement in China. Cisco has denied allegations of wrongdoing.
[1:30] Speaker 2: My guest is an expert in international law. Curtis Bradley,
[1:34] Speaker 2: a professor at the University of Chicago Law School, tell
[1:38] Speaker 2: us about this lawsuit by twelve Chinese nationals and one
[1:43] Speaker 2: US citizen suing Cisco.
[1:45] Speaker 1: So, the Cisco case was a suit brought by the
[1:49] Speaker 1: Fallangong religious group from China at least a number of
[1:53] Speaker 1: members of that organization. They were suing not China in
[1:56] Speaker 1: this case, but Cisco Systems, the computer company in the
[1:59] Speaker 1: United States, and their argument was that Cisco had aided
[2:03] Speaker 1: and abedded persecution of the Felongong in China by supplying
[2:08] Speaker 1: Chinese government with surveillance technology basically, And the lower court
[2:13] Speaker 1: had allowed this case to go forward, and the Supreme
[2:16] Speaker 1: Court said that it could not go forward, and they
[2:18] Speaker 1: issued a pretty important ruling about this type of human
[2:22] Speaker 1: rights litigation which has been pretty active for the last
[2:25] Speaker 1: thirty years. And the court's decision in Cisco, I think
[2:28] Speaker 1: largely is going to put an end to these human
[2:31] Speaker 1: rights cases brought against corporations.
[2:33] Speaker 2: Was the issue whether the Alien Towards Statute creates liability
[2:38] Speaker 2: for corporations that aid and abet human rights abuse.
[2:42] Speaker 1: Yeah, the cases based on this old statute called the
[2:44] Speaker 1: Alien Tort Statute. It's actually been on the books for
[2:48] Speaker 1: you know, since the beginning of the country seventeen eighty nine,
[2:51] Speaker 1: but it has just been used for human rights litigation
[2:55] Speaker 1: really during the last thirty or forty years. And what
[2:59] Speaker 1: the Court held in the Cisco case was, effectively it
[3:03] Speaker 1: cannot be used for human rights. Cli know. One way
[3:05] Speaker 1: to translate the decision. They basically said the statute doesn't
[3:10] Speaker 1: have enough indication in it that Congress has wanted these
[3:13] Speaker 1: human rights cases to go forward. So unless Congress amends
[3:17] Speaker 1: the statue, the Court is really putting an end to
[3:20] Speaker 1: those cases. It did say that the statue could be
[3:23] Speaker 1: used for a few personal injury type claims that would
[3:27] Speaker 1: have been around in the seventeen eighties, but they're not
[3:29] Speaker 1: ones that we ever see today anymore. So this Cisco
[3:33] Speaker 1: case basically says Congress will have to provide a new
[3:36] Speaker 1: statue if plaintiffs are going to be able to sue
[3:39] Speaker 1: for human rights abuses occurring in various countries. And that's
[3:43] Speaker 1: that's an important ruling because there have been many cases
[3:47] Speaker 1: for human rights abuses brought for atrocities from around the world,
[3:50] Speaker 1: and they've been brought into US courts under this old
[3:53] Speaker 1: Alien Torch statue, and the Supreme Court had composed a
[3:57] Speaker 1: variety of restrictions on that litigation really in the last
[4:01] Speaker 1: of fifteen years or so. But this is a more
[4:04] Speaker 1: dramatic limit because it effectively just ends any more Alien
[4:08] Speaker 1: Towart Statute litigation. I think.
[4:10] Speaker 2: So the Alien Towart Statute is only thirty three words.
[4:13] Speaker 2: I'm going to read it. The district court shall have
[4:15] Speaker 2: original jurisdiction of any civil action by an alien for
[4:19] Speaker 2: a tourt only committed in violation of the law of
[4:22] Speaker 2: nations or a treaty of the United States. So, if
[4:25] Speaker 2: this is a court, you know, that's reading the statute
[4:28] Speaker 2: and ruling according to the words, why doesn't that cover
[4:33] Speaker 2: what's happening here?
[4:34] Speaker 1: Well, a couple of thoughts. One thing the court notes
[4:37] Speaker 1: is that until the nineteen eighties, no one thought the
[4:41] Speaker 1: statute provided a cause of action a claim for human
[4:44] Speaker 1: rights abuses. And the words that you just read are
[4:47] Speaker 1: not really written in terms of a claim statute. All
[4:50] Speaker 1: they say is that the courts have jurisdiction, that is
[4:53] Speaker 1: that they're available to hear certain kinds of tort cases,
[4:57] Speaker 1: but they don't really provide what we today would call
[5:00] Speaker 1: the cause of action, that is, a right to seek
[5:02] Speaker 1: damages or other relief. And at least in the modern era,
[5:06] Speaker 1: courts wait until Congress provides an actual claim statute before
[5:11] Speaker 1: it starts giving people the right to sue for damages.
[5:14] Speaker 1: But in the alien tort statue cases, courts had been
[5:17] Speaker 1: allowing suits for damages even though I don't think the
[5:20] Speaker 1: statute really addresses that. The other thing the Court mentions
[5:26] Speaker 1: is that suits for these torts around the world inherently
[5:30] Speaker 1: raise foreign policy issues. Sometimes they might promote some good
[5:34] Speaker 1: in terms of human rights improvement, but they also sometimes
[5:38] Speaker 1: create lots of conflicts with other countries. And the Court
[5:42] Speaker 1: thought that if Congress really wants that type of litigation,
[5:47] Speaker 1: it needs to address those foreign policy issues more specifically,
[5:51] Speaker 1: and just citing a statue from seventeen eighty nine doesn't
[5:54] Speaker 1: really show Congress as addressed all the foreign policy trade
[5:58] Speaker 1: offs the human rights cases today, and so effectively, the
[6:02] Speaker 1: Court's just pushing this over to Carnas.
[6:05] Speaker 2: The three liberals were in descent. Just as Sodo Mayor said,
[6:09] Speaker 2: the Court's decision today is yet another notch in its belt,
[6:11] Speaker 2: unabashedly remaking the law on its preferred image, and the
[6:15] Speaker 2: majority jettison's two decades of settled precedent and breathes new
[6:20] Speaker 2: life into two decades of rejected legal theories. I mean,
[6:24] Speaker 2: only twenty years ago, the Supreme Court held the opposite
[6:28] Speaker 2: of what the court's holding here.
[6:29] Speaker 1: That is sort of true. There's a two thousand and
[6:32] Speaker 1: four decision. It's called Sosa versus Alvar's Machine, and Sodamora's
[6:37] Speaker 1: Descent certainly understandably emphasizes that decision because the Court there
[6:43] Speaker 1: did allow at least some cases to continue proceeding under
[6:47] Speaker 1: the alien torch statue. Now, it was a pretty limited
[6:50] Speaker 1: holding in Sosa, and the court said there should never
[6:55] Speaker 1: be a particularly robust a set of cases, and it
[6:58] Speaker 1: suggested a variety of limits the court should consider. And
[7:03] Speaker 1: since that two thousand and four decision, the Supreme Court
[7:05] Speaker 1: has never found a case to satisfy those limits from
[7:09] Speaker 1: that two thousand and four case. And so the majority
[7:12] Speaker 1: in the Cisco case says, we should just be clear
[7:16] Speaker 1: that we're just not going to find a case that
[7:19] Speaker 1: satisfies those strict limitations and just let everyone know so
[7:23] Speaker 1: they don't waste time litigating, because repeatedly the Court has
[7:27] Speaker 1: found reasons to reject those claims, and now it's just
[7:30] Speaker 1: doing so more categorically. But I think the Descent makes
[7:33] Speaker 1: a reasonable point that the court's not really giving precedential
[7:37] Speaker 1: effect to that two thousand and four case. My own view,
[7:41] Speaker 1: by the way, you know, what people disagree about this
[7:43] Speaker 1: is that the two thousand and four case is probably
[7:45] Speaker 1: wrongly decided, and I think the majority believes that to
[7:48] Speaker 1: be the case as well. But nevertheless, there's an argument
[7:51] Speaker 1: that it was entitled to some presidential weight that the
[7:54] Speaker 1: Court is not giving it.
[7:56] Speaker 2: And I mean the court has been narrowing the alien
[8:00] Speaker 2: The Roberts Court has been narrowing the alien towards statute
[8:03] Speaker 2: over the years. And I remember the twenty twenty one
[8:06] Speaker 2: decision where a lawsuit accused Cargol and a Nesli subsidiary
[8:10] Speaker 2: of knowingly perpetuating slavery of children on the Ivory Coast,
[8:16] Speaker 2: and the court said there's no cause of action there either.
[8:19] Speaker 2: If there's no cause of action, then I mean these
[8:21] Speaker 2: people have no place else to sue, right or do that?
[8:25] Speaker 1: That is, you know, one of the concerns about some
[8:27] Speaker 1: of these restrictive decisions. But the Neslie case you mentioned
[8:30] Speaker 1: and some others like it, what the Court had been
[8:33] Speaker 1: saying was that it would not allow the Alien Torch
[8:36] Speaker 1: Statute to be used for events that are entirely at
[8:40] Speaker 1: taking place in other countries that aren't really connected to
[8:43] Speaker 1: the US. What that produced was a lot of litigation
[8:47] Speaker 1: fighting over whether there was some kind of minimal connection
[8:50] Speaker 1: to say, planning or other activities in the US. And
[8:53] Speaker 1: that is just generating a lot of litigation, most of
[8:56] Speaker 1: which did not result in wins for the plaintiffs. But nevertheless,
[8:59] Speaker 1: you know, the Court thought was kind of costly for
[9:01] Speaker 1: the system, and I think the Court and Cisco thought
[9:04] Speaker 1: it'd be better just to make a more categorical rule
[9:08] Speaker 1: that we shouldn't keep litigating that now. As you mentioned,
[9:12] Speaker 1: you know, the counter argument to all of this is
[9:14] Speaker 1: there are serious atrocities being committed in various countries. Most
[9:20] Speaker 1: of the time there aren't really any available remedies for
[9:23] Speaker 1: the victims. They can't typically sue in the place of
[9:27] Speaker 1: the of the human rights abuse. Most other nations don't
[9:30] Speaker 1: allow cases like we had been allowing under the Alien
[9:33] Speaker 1: Torch Statute, they aren't really international tribunals suited for the task.
[9:38] Speaker 1: So some of the courts who like the Alien Tord
[9:41] Speaker 1: Statute litigation had said, at least that's some possibility of
[9:46] Speaker 1: redress vindication of their human rights, and that's actually a
[9:50] Speaker 1: main reason some of the lower courts had been allowing
[9:54] Speaker 1: these cases. But as the majority said in Cisco, that
[9:58] Speaker 1: might be a noble goal, it's just not clear that
[10:00] Speaker 1: Congress has endorsed that particular goal. And normally, at least today,
[10:05] Speaker 1: if we're going to allow those kinds of important claims,
[10:09] Speaker 1: somebody in the political branches, Congress particularly should actually decide
[10:12] Speaker 1: whether that makes sense, maybe put some limits in the statue.
[10:15] Speaker 1: One problem with the Eliant tor Statute, since it was
[10:18] Speaker 1: never really written as a claim statute, it doesn't actually
[10:21] Speaker 1: have any of the things we would normally find in
[10:23] Speaker 1: terms of limits, like I don't know a statute of limitations, period,
[10:26] Speaker 1: definitions of the claims you can bring. None of that's
[10:30] Speaker 1: in the statue because I don't think it was really
[10:33] Speaker 1: passed as a claim statute when it was first enacted.
[10:36] Speaker 1: And so you know, the argument of the majority is,
[10:39] Speaker 1: if it's really important to vindicate these rights, then people
[10:43] Speaker 1: should lobby Congress to try to get another human rights statute.
[10:46] Speaker 1: They got one, by the way, in the nineteen nineties.
[10:49] Speaker 1: It's called the Torture Victim Protection Act. They lobbied Congress,
[10:52] Speaker 1: Congress passed a law that you can bring claims under
[10:55] Speaker 1: that statute for torture and extra judicial killing. And the
[11:01] Speaker 1: Court has not stopped those cases, although it did limit
[11:04] Speaker 1: that statute a little bit in the Cisco case. So
[11:07] Speaker 1: that's the argument, the majority at least is that if
[11:09] Speaker 1: there's a good argument for vindicating these human rights, that's
[11:12] Speaker 1: a decision that I'd be made by Congress and the
[11:15] Speaker 1: executive brand.
[11:16] Speaker 2: In an eight to one decision, the majority said that
[11:20] Speaker 2: the Torture Victims Protection Act of nineteen ninety one, which
[11:23] Speaker 2: you just talked about, doesn't allow aiding and abetting liability claims. Well,
[11:28] Speaker 2: why not if that's the go to statute.
[11:30] Speaker 1: Now, yeah, Now, almost all the justices agreed on that holding,
[11:35] Speaker 1: except for Justice so tomorrow. And the reason is that
[11:37] Speaker 1: the Court had already said in a number of other cases,
[11:40] Speaker 1: not ones that involve human rights, but just other corporate
[11:43] Speaker 1: activity cases that aiding and a betting liability is raises
[11:47] Speaker 1: a sufficient number of policy questions that we normally require
[11:52] Speaker 1: Congress to be express when it wants to extend the
[11:55] Speaker 1: reach of a statute not just to those who did
[11:59] Speaker 1: something wrong, but those who might have helped it do
[12:01] Speaker 1: something wrong. And so there's already just case law that's
[12:05] Speaker 1: pretty strong case called Central Bank of Denver some other cases.
[12:08] Speaker 1: The Supreme Court has just said, we don't imply normally
[12:11] Speaker 1: aiding in a betting liability. We don't assume Congress does
[12:14] Speaker 1: that lightly. And there's nothing in the Torture Victim Protection
[12:18] Speaker 1: Act from nineteen ninety one that says anything about being
[12:21] Speaker 1: able to sue not just the perpetrators but also those
[12:25] Speaker 1: who might aid and a bet them. And it is
[12:27] Speaker 1: a big extension of a statute to start applying it
[12:30] Speaker 1: to others who might in some ways be connected to
[12:33] Speaker 1: the perpetrators. It's not that it's a bad idea. Sometimes
[12:36] Speaker 1: we want to go after aiders and a betters. And
[12:39] Speaker 1: so eight of the nine justices thought this was pretty
[12:43] Speaker 1: clear under their case law that you do have to
[12:46] Speaker 1: wait for Congress to make that decision expressly.
[12:49] Speaker 2: Just broadly speaking, the Roberts Court has been very pro business.
[12:54] Speaker 2: I mean, in most of these human rights lawsuits that
[12:57] Speaker 2: came up to the Court, the plaintive are suing businesses.
[13:01] Speaker 2: Is that part of.
[13:02] Speaker 1: This, well, it's complicated for the human rights cases. I
[13:05] Speaker 1: would say it is true that once they started getting
[13:08] Speaker 1: the human rights cases against corporations, they consistently held in
[13:13] Speaker 1: the corporate side of this. I agree with that. However,
[13:17] Speaker 1: you know that litigation started as suits against individual foreign
[13:21] Speaker 1: officials and others back in the eighties and nineties. It
[13:24] Speaker 1: eventually expanded into suits against corporations. But I don't think
[13:29] Speaker 1: the Supreme Court was ever fully on board even before
[13:32] Speaker 1: it became a vehicle for corporate litigation. So I think
[13:36] Speaker 1: the Court's concerns transcend the fact that it's being used
[13:40] Speaker 1: against corporations. It's really the plaintiffs have decided in the
[13:43] Speaker 1: Alien Tort Statute. They decided that corporations were just a
[13:47] Speaker 1: better defendant because they have assets, often assets in the
[13:51] Speaker 1: United States. They're sometimes willing to settle these cases for
[13:55] Speaker 1: large amounts of money. So it wasn't that the Supreme
[13:58] Speaker 1: Court had particular focused on the corporations. That just that
[14:02] Speaker 1: the increasingly those human rights cases became corporate type lawsuits.
[14:07] Speaker 1: And I think the Court's concerns about it extended beyond
[14:11] Speaker 1: the fact that it was about corporations. But it's absolutely true.
[14:14] Speaker 1: One thing that happened in that Alien torstatute litigation, which
[14:17] Speaker 1: I think did hurt the plaintiffs cause is when they
[14:21] Speaker 1: started increasingly suing corporations. They were suing a lot of
[14:24] Speaker 1: European corporations in the nineties and two thousands. That prompted
[14:28] Speaker 1: European governments to start complaining to the Supreme Court about
[14:32] Speaker 1: what this litigation had been doing. They thought the US
[14:35] Speaker 1: was being too aggressive in its courts going after their companies,
[14:39] Speaker 1: and that set of protests from the European Union and
[14:43] Speaker 1: others I think did have some influence on the Court's
[14:47] Speaker 1: view of this litigation. Not so much that they wanted
[14:49] Speaker 1: to protect corporations, but it was clear that that litigation
[14:53] Speaker 1: was producing conflict with other countries because US courts were
[14:58] Speaker 1: allowing cases against say, Dutch oil companies and others. So
[15:02] Speaker 1: I wouldn't just view this as just purely kind of
[15:05] Speaker 1: a sympathy for corporations. It was also just a worry
[15:07] Speaker 1: about was this harming US foreign relations and the executive branch,
[15:12] Speaker 1: at least in some of the administrations had that same
[15:15] Speaker 1: concern that the litigation was creating undue conflicts with allies
[15:20] Speaker 1: and others abroad, So I think it transcends the corporate
[15:24] Speaker 1: part of it.
[15:24] Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
[15:27] Speaker 2: this conversation with Professor Curtis Bradley of the University of
[15:31] Speaker 2: Chicago Law School. The Supreme Court revived a one billion
[15:35] Speaker 2: dollars suit by Exon against a Cuban conglomerate for operating
[15:40] Speaker 2: oil and gas assets seized in nineteen sixty. You're listening
[15:45] Speaker 2: to Bloomberg. I've been talking to Professor Curtis Bradley of
[15:48] Speaker 2: the University of Chicago Law School KURK. While the Conservatives
[15:52] Speaker 2: are not allowing human rights lawsuits against corporations over atrocities abroad,
[15:59] Speaker 2: they are allow showing a one billion dollars suit by
[16:02] Speaker 2: Exon against a Cuban conglomerate for operating oil and gas
[16:07] Speaker 2: assets seized in nineteen sixty in Cuba following the country's
[16:11] Speaker 2: communist revolution, and that was also by a six to
[16:15] Speaker 2: three vote down idiological lines. Quite a contrast there.
[16:20] Speaker 1: Yes, absolutely, in some ways they look like decisions that
[16:23] Speaker 1: have been in conflict in that the Cisco case shuts
[16:28] Speaker 1: down international type claims because they're worried about the foreign
[16:32] Speaker 1: policy implications. The Exon Mobile case allows pretty aggressive international
[16:38] Speaker 1: claims against at least Cuban entities and others. And so
[16:44] Speaker 1: how do you reconcile those? Well, one way possibly of reconcile.
[16:49] Speaker 1: And I think the court and the Exon case had
[16:52] Speaker 1: the view that Congress and the Executive really did support
[16:55] Speaker 1: aggressive legal claims against Cuba and companies, you know, trans
[17:00] Speaker 1: acting with Cuba. And that's probably to some extent true.
[17:03] Speaker 1: You know, the statute in the Exon case is you know,
[17:06] Speaker 1: relatively recent one compared to the Alien Torch statute. It
[17:10] Speaker 1: was enacted in the nineties. It's called the Helms Burton Act,
[17:13] Speaker 1: and it has aggressive provisions allowing suits against anyone who
[17:17] Speaker 1: traffics in property, you know, confiscated by the Castro Cuban government.
[17:22] Speaker 1: And it does have language allowing suit against even against
[17:26] Speaker 1: government entities that transact in that confiscated property. So at
[17:31] Speaker 1: least the court in the Exon case has stronger and
[17:33] Speaker 1: clear statutory language I think, to work with in allowing
[17:38] Speaker 1: the claims. I think that it would certainly say that
[17:40] Speaker 1: if it were going to distinguish it from the Cisco case.
[17:43] Speaker 1: I actually think it's kind of a pretty close call
[17:45] Speaker 1: in my view about the statutory language in the Exon case.
[17:48] Speaker 1: So I thought the dissenting justices there, Justice Kagan wrote,
[17:52] Speaker 1: wrote the dissent, I thought they had some reasonable counter
[17:54] Speaker 1: arguments about the statute. But I think if you were
[17:58] Speaker 1: going to reconcile the two cases, I think the courts
[18:00] Speaker 1: view is, yes, suits against Cuba and other companies doing
[18:04] Speaker 1: business with Cuba raise foreign policy concerns, but it looks
[18:08] Speaker 1: like Congress and the executive are willing to implicate those concerns,
[18:13] Speaker 1: whereas they were not sure that was the case for
[18:15] Speaker 1: the human rights cases.
[18:17] Speaker 2: Explain why the liberal justices dissented.
[18:20] Speaker 1: Yeah, So Justice Kagan's dissent focuses primarily on statutory language.
[18:25] Speaker 1: And the United States has had a very comprehensive law
[18:31] Speaker 1: that gives immunity to foreign governments and government owned companies
[18:36] Speaker 1: and entities. They've had this law since nineteen seventy six,
[18:40] Speaker 1: and it broadly gives immunity to foreign governments and their
[18:44] Speaker 1: entities unless one of a set of specified exceptions than
[18:49] Speaker 1: the statute are meant. And it wasn't clear any of
[18:52] Speaker 1: those exceptions would work here in this exton case. And
[18:56] Speaker 1: so Kagan's argument dissent is, you know there's a statute here.
[19:01] Speaker 1: It says there's immunity, and no one has shown that
[19:03] Speaker 1: you've met any of the exceptions. And she pointed out
[19:06] Speaker 1: that the Helm's Burden Act, which gives this claim for
[19:09] Speaker 1: suing entities that traffic and confiscated property, doesn't have anything
[19:13] Speaker 1: in it about immunity. It doesn't say there's an exception
[19:16] Speaker 1: to immunity. It doesn't reference the Foreign Sovereign Immunity Statute.
[19:20] Speaker 1: So Kagan's argument of dissent is, we can reconcile these
[19:23] Speaker 1: statutes by saying, yes, you have a cause of action
[19:26] Speaker 1: under the Hells Burton Law, but if you're suing a
[19:30] Speaker 1: government owned entity, as they were in this exton case,
[19:33] Speaker 1: you have to work through the immunity statute, and it
[19:36] Speaker 1: maybe you're not going to be able to do that
[19:38] Speaker 1: in this case. That strikes me, by the way, as
[19:41] Speaker 1: a pretty reasonable and plausible way of reconciling two statutes. Obviously,
[19:46] Speaker 1: the majority was not persuaded. Justice Kavanaugh said that he
[19:50] Speaker 1: thought there was enough evidence that Congress implicitly in giving
[19:56] Speaker 1: the cause of action and the Helms Burton law, it
[19:58] Speaker 1: implicitly was taking away immunity of Cuban government entities that
[20:04] Speaker 1: traffic in this property. But it's all by implication, and
[20:09] Speaker 1: I certainly thought it was a debatable issue of statutory interpretation.
[20:13] Speaker 2: Cuba's going through its worst economic and energy crisis in decades,
[20:18] Speaker 2: practically speaking, does Exxon expect to recover money here?
[20:24] Speaker 1: Well, that's a general issue in these hell of burden
[20:27] Speaker 1: at cases. You know, it's a pretty recent issue because
[20:30] Speaker 1: Congress passed that law in the nineties, But then it
[20:33] Speaker 1: also has a provision that says presidents can stop the
[20:36] Speaker 1: operation of this statute for six months at a time,
[20:39] Speaker 1: and every president had done that. So it had avoided
[20:42] Speaker 1: this question in part maybe out of the hope that
[20:45] Speaker 1: the US would develop better relations with Cuba at some point,
[20:48] Speaker 1: and if you had a bunch of judgments out there,
[20:51] Speaker 1: it might make it harder to kind of work out
[20:53] Speaker 1: a new relationship with Cuba. But Trump, in his first
[20:56] Speaker 1: term was the first president to stop the suspension of
[21:00] Speaker 1: the claims and has allowed them to go forward. So
[21:03] Speaker 1: it is the case that now there are these suits
[21:07] Speaker 1: not just against Cuban governmentent these but other private companies
[21:11] Speaker 1: as well, and the private companies presumably if they're found liable,
[21:15] Speaker 1: they can pay those judgments. But you know, it's a
[21:18] Speaker 1: big question about whether and how this poor Cuban government
[21:22] Speaker 1: is going to satisfy judgments that relate to the government,
[21:26] Speaker 1: and it might complicate, you know, any effort to kind
[21:30] Speaker 1: of have more normal relationships with Cuba, if that becomes
[21:34] Speaker 1: an option going forward. That concern is a reason that
[21:37] Speaker 1: before Trump, at least presidents were concerned about some of
[21:41] Speaker 1: this private litigation that it might complicate a normalization effort
[21:46] Speaker 1: if that became possible with Cuba. And I think that's
[21:50] Speaker 1: probably true. And generally the executive has just disfavored private
[21:55] Speaker 1: foreign affairs kinds of lawsuits like this because it makes
[21:58] Speaker 1: a diplomacy sometimes more challenging. But Trump, you know, has
[22:02] Speaker 1: a different perspective on that. And I presume if there
[22:06] Speaker 1: are judgments out there against Cuban government entities, they would
[22:10] Speaker 1: have to be addressed at some level in some kind
[22:13] Speaker 1: of a settlement if the US, you know, tried to
[22:16] Speaker 1: have a new relationship with Cuban.
[22:18] Speaker 2: So finally, I mean, do you think that this will open,
[22:21] Speaker 2: you know, the floodgates to more suits against Cuba.
[22:25] Speaker 1: I'm not sure this case by itself will do that.
[22:28] Speaker 1: You know, Trump, by authorizing the use of the statute
[22:32] Speaker 1: has sort of opened up not necessarily floodgates, but a
[22:35] Speaker 1: number of cases against and by the way, not just
[22:38] Speaker 1: Cuban government entities. That's the kind of unusual part of
[22:41] Speaker 1: this case, and the court therefore had to do with
[22:44] Speaker 1: the immunity question. The broader element of the Hell's Burden
[22:48] Speaker 1: Act is just being able to sue any private actor
[22:51] Speaker 1: that happens to so called traffic in property originally confiscated
[22:56] Speaker 1: by Cuba. That basically means you could potentially to a
[23:00] Speaker 1: lot of companies that do business with Cuba. So, you know,
[23:04] Speaker 1: European and other countries have expressed concerns about this Hells
[23:08] Speaker 1: Burtnek because it really looks like an effort by the
[23:11] Speaker 1: United States to force a boycott on the other countries
[23:16] Speaker 1: and their companies, and that is happening. There are a
[23:19] Speaker 1: number of cases pending against these other private actors relating
[23:24] Speaker 1: to Cuba, and so I think it won't be this
[23:27] Speaker 1: decision per se, although this might open up somewhat more
[23:30] Speaker 1: litigation than we had had before.
[23:31] Speaker 2: Thanks so much, Kurt for a very interesting conversation. That's
[23:35] Speaker 2: Professor Kurtis Bradley of the University of Chicago Law School.
[23:39] Speaker 2: I'm June Grosso, and you're listening to Bloomberg. Acting Attorney
[23:44] Speaker 2: General Todd Blanche is facing a complaint filed by a
[23:48] Speaker 2: group of former federal and state judges with the New
[23:51] Speaker 2: York State Bar asking for an investigation into his conduct
[23:56] Speaker 2: in three areas, the orchestration of the creation of the
[24:00] Speaker 2: one point eight billion dollar so called Anti Weaponization Fund,
[24:04] Speaker 2: bringing controversial indictments against President Trump's political enemies like former
[24:10] Speaker 2: FBI Director James Comy, and the flawed disclosure of documents
[24:15] Speaker 2: in response to the Epstein Files Transparency Act. Whether action
[24:19] Speaker 2: is taken on this complaint or not, there's no doubt
[24:23] Speaker 2: that these are just some of the issues that will
[24:25] Speaker 2: be raised by Democratic senators at Blanche's July confirmation hearings
[24:31] Speaker 2: to be the Attorney General. Joining me is Carl Tobias,
[24:34] Speaker 2: a professor at the University of Richmond Law School. Todd Blanche,
[24:39] Speaker 2: Trump's personal attorney, has been nominated by Trump to be
[24:43] Speaker 2: the Attorney General of the United States, and there are
[24:46] Speaker 2: going to be a lot of questions about how he's
[24:49] Speaker 2: performed as acting Attorney General. The one point eight billion
[24:54] Speaker 2: dollar anti weaponization fund has been criticized by both Democrats
[24:59] Speaker 2: and Republicans, and though he testified to Congress that the
[25:04] Speaker 2: fund was not going forward, he refused to give a
[25:08] Speaker 2: federal judge a sworn statement to that effect. I mean,
[25:13] Speaker 2: do you think that this is enough to cause a
[25:16] Speaker 2: problem with his nomination?
[25:18] Speaker 3: Potentially? It is because I think Judge Brinkhama specifically asked
[25:24] Speaker 3: for that verification in writing, partly because the administration hasn't
[25:32] Speaker 3: been very forthcoming and President Trump, for example, is sent
[25:37] Speaker 3: on a number of occasions he thinks the anti recognization
[25:41] Speaker 3: fund is a great idea. So it's not, as Blanche said,
[25:46] Speaker 3: as dead as he said it is, I think in
[25:50] Speaker 3: Judge Brinkhma's mind and many Americans, and so she has
[25:55] Speaker 3: asked for that. Though there was pushback in the response
[25:59] Speaker 3: from the Department of Justice that was due on Friday,
[26:03] Speaker 3: and the Department of Justice basically said, we've done all
[26:07] Speaker 3: we can do, We're not going to do anymore. So
[26:11] Speaker 3: I think what she's going to do is go forward
[26:14] Speaker 3: and enter some kind of more permanent injunction. And so
[26:20] Speaker 3: then I assume they'll appeal.
[26:22] Speaker 2: That is it unheard of for a judge to wants
[26:24] Speaker 2: someone in the cabinet in this case, the acting Attorney
[26:28] Speaker 2: General and the Treasury Secretary to submit a sworn statement.
[26:33] Speaker 3: Well, it depends on who you talk to. But I
[26:36] Speaker 3: think there's a problem with many people in the president
[26:41] Speaker 3: administration not doing what they say they're going to do,
[26:46] Speaker 3: and so that makes it very difficult for federal judges
[26:49] Speaker 3: who are trying to decide cases and make sure that
[26:54] Speaker 3: everything proceeds as it should. And that's why I think
[26:58] Speaker 3: she asked for it in writing. There's been a lot
[27:01] Speaker 3: of discussion about how there are issues with lawyers at
[27:06] Speaker 3: the Department of Justice when they're in court and what
[27:09] Speaker 3: they're saying in court, especially in the Eastern District of
[27:12] Speaker 3: Virginia and other jurisdictions.
[27:15] Speaker 2: And another matter that I'm sure the Democratic Senators will
[27:20] Speaker 2: bring up is the Epstein files. And this has be
[27:24] Speaker 2: deviled many a person in the Trump administration. So when
[27:28] Speaker 2: Attorney General Pam Bondy testified to the committee, apparently she
[27:33] Speaker 2: put the whole onus of the Epstein release on Todd
[27:38] Speaker 2: blnch And you also have the fact that no one
[27:41] Speaker 2: has revealed why after he interviewed Gallaine Maxwell in a
[27:48] Speaker 2: Florida higher security prison, she was somehow transferred within days
[27:54] Speaker 2: to a low security prison where apparently she's getting benefits
[27:57] Speaker 2: that other prisoners don't. So he's going to be subject
[28:00] Speaker 2: to a lot of questions on that too.
[28:03] Speaker 3: Well, that's right, and the hearing. Democrats objected to having
[28:11] Speaker 3: a hearing combined with an oversight hearing. A Senator Whitehouse
[28:15] Speaker 3: from Rhode Island, who took over because Durbin was out
[28:19] Speaker 3: of town, said that very thing in the markup last week.
[28:23] Speaker 3: He wanted to know what was going to happen, and
[28:27] Speaker 3: he thought that it was a mistake to combine an
[28:30] Speaker 3: oversight hearing for the Department of Justice into the hearing
[28:34] Speaker 3: on Blanche because there wasn't sufficient time and there were
[28:39] Speaker 3: many questions Democrats wanted to ask, and Grassley was not
[28:43] Speaker 3: entirely clear about that. So we'll see, but I think
[28:47] Speaker 3: Democrats believe and white House said that we need to
[28:51] Speaker 3: have a full hearing on the nomination because it's so
[28:55] Speaker 3: important and there are other issues that are involved. Remember
[29:00] Speaker 3: the day after the weaponization fund was signed as part
[29:05] Speaker 3: of the deal, then there was a pended the tax
[29:10] Speaker 3: immunity for Trump and his family, which has been attributed
[29:16] Speaker 3: to Blanche and it was less than a page, and
[29:20] Speaker 3: so that has not gotten nearly as much attention as
[29:23] Speaker 3: the Anti Weaponization Fund, but it should be equally troubling
[29:27] Speaker 3: because most Americans think that they're not going to have
[29:31] Speaker 3: immunity from tax liability.
[29:34] Speaker 2: Yeah, and Blanche said that it was going forward and
[29:36] Speaker 2: he characterized it as something you know that happens all
[29:40] Speaker 2: the time, which is absurd. Even a single Republican on
[29:46] Speaker 2: the Judiciary Committee not voting for Blanche could sink his nomination.
[29:53] Speaker 3: Well, it's possible, and people have talked about Senator Tillis
[29:58] Speaker 3: and his strong concern about January six and the rioters
[30:04] Speaker 3: at the Capitol and how Blanche is treated that and
[30:10] Speaker 3: what one Republican can do is stop it from going
[30:15] Speaker 3: forward because if that person votes, know, then it would
[30:19] Speaker 3: be a tie and would go to the whole Senate.
[30:22] Speaker 3: It's still possible he could move forward, but it's much
[30:25] Speaker 3: more difficult to do in that situation. The other senator
[30:30] Speaker 3: people are talking about is Senator Cornyn, who now will
[30:33] Speaker 3: be retiring after losing to Paxton in the primary, and
[30:39] Speaker 3: he has raised questions for Blanche as well. Does he
[30:43] Speaker 3: understand the difference in being the personal lawyer for the
[30:48] Speaker 3: president and being Attorney general for the country. And that's
[30:52] Speaker 3: a telling commentary.
[30:55] Speaker 2: Okay, So let's turn to judges. Is time running out
[30:58] Speaker 2: for the Senate to confirm judges before the midterms?
[31:03] Speaker 3: Well, very soon it will run out, you're correct, and
[31:08] Speaker 3: don't forget. They'll go for July fourth and come back
[31:11] Speaker 3: on the thirteenth of July. They'll go for August summer
[31:15] Speaker 3: break and take most of that month in summer September,
[31:20] Speaker 3: and then pretty soon when they come back in September,
[31:23] Speaker 3: they'll have a couple of weeks and then they'll go campaign.
[31:27] Speaker 3: So there isn't a whole lot of time. The White
[31:30] Speaker 3: House is relatively caught up, except that there are a
[31:33] Speaker 3: number of vacancies where they have no nominees. For example,
[31:36] Speaker 3: the fith Circuit vacancy, which we just learned about. Judge
[31:40] Speaker 3: Engelhart of Louisiana said he would take senior status and
[31:44] Speaker 3: so that one could be very difficult to fill in
[31:48] Speaker 3: that short period of time. So I don't know that
[31:51] Speaker 3: that's going to happen.
[31:53] Speaker 2: So some of the front runners for that seat Louisiana
[31:56] Speaker 2: Solicitor General Jay Benjamin Aguina, who clerk for Justice Alito
[32:02] Speaker 2: and has argued four cases before the Supreme Court.
[32:06] Speaker 3: Yes, and he's a solicitor general there again clerk for
[32:09] Speaker 3: Judge Alito. The other people being considered Anna Saint John,
[32:16] Speaker 3: who was just confirmed for the Eastern District Louisiana this year,
[32:21] Speaker 3: And of course the person who's advising the White House
[32:25] Speaker 3: on this is the Senior Senator Kennedy from Louisiana. He
[32:29] Speaker 3: has outsized influence, and of course Center Cassidy is prominent
[32:34] Speaker 3: as well, But Kennedy is the lynchpin on this one,
[32:39] Speaker 3: and I think the White House is deferring somewhat to
[32:41] Speaker 3: his judgment there. It would be very difficult though, for
[32:47] Speaker 3: Judge Saint John, who's just started taking cases as a
[32:51] Speaker 3: district judge, to then be elevated to the Circuit. It
[32:57] Speaker 3: seems to me then you'd have to fill behind that
[33:00] Speaker 3: in that vacancy, and that would take some time. So Kennedy,
[33:03] Speaker 3: I think, has to figure that out and make the recommendation.
[33:07] Speaker 3: I think the White House will defer to him, and
[33:09] Speaker 3: he's worked well with the White House with other appointees.
[33:13] Speaker 3: He also was instrumental I think even in during Biden's
[33:16] Speaker 3: time in bringing people forward for the district bench, and
[33:20] Speaker 3: that might be a viable compromise because some of them
[33:23] Speaker 3: have already served two or three years on the district
[33:25] Speaker 3: bench and have records that could be consulted, and they
[33:30] Speaker 3: went relatively easily through the Senate at the time they
[33:34] Speaker 3: were confirmed.
[33:35] Speaker 2: He backed Saint John for that judge ship, so I
[33:38] Speaker 2: don't know if that will play into it, but he
[33:41] Speaker 2: was a big supporter of hers.
[33:42] Speaker 3: So yes, he said very glowing things about her abilities.
[33:47] Speaker 3: And in a way, she's more suited to the appellate
[33:50] Speaker 3: bench because that's the kind of work she did. She
[33:53] Speaker 3: was not, I think, a litigator in the district courts,
[33:56] Speaker 3: but rather filing appeals and arguing those appeals in the
[34:01] Speaker 3: app's court. On the other hand, Naga has had significant
[34:06] Speaker 3: experience in the appeals courts and his clerking make him
[34:10] Speaker 3: an important candidate, and he's done some difficult cases in
[34:14] Speaker 3: Louisiana and one some pretty big ones.
[34:16] Speaker 2: This will not tip the balance of Republican appointees to
[34:20] Speaker 2: Democratic appointees on the Fifth Circuit. Does it make a difference,
[34:24] Speaker 2: You know, a Republican appointee is replacing a Republican appointee.
[34:28] Speaker 2: Is there any difference?
[34:29] Speaker 3: Well, of course, because I think Judge Engliheart just took
[34:34] Speaker 3: senior status under the rule of eighty because he's sixty five,
[34:37] Speaker 3: and I think Anguinada is much younger than that, and
[34:42] Speaker 3: so you do get, you know, twenty or thirty years
[34:45] Speaker 3: of service, which is important. Judge Englehart had been a
[34:48] Speaker 3: district judge see for a long period and so I think,
[34:52] Speaker 3: all things being equal, they would want to do that.
[34:54] Speaker 3: But Saint John is quite young, and I think as well.
[34:58] Speaker 2: Are there any other open appellate spots.
[35:02] Speaker 3: Yes, This last week in the markup for the Second Circuit,
[35:05] Speaker 3: Matthew Schwartz, who represented the President in the hush money
[35:09] Speaker 3: case as well as the federal cases, which takes the
[35:13] Speaker 3: Chief Judge Livingston's vacancy for the second Circuit, she took
[35:17] Speaker 3: sing your status. And then in the sixth Circuit you
[35:19] Speaker 3: have Benjamin Flowers who will take the vacancy created by
[35:24] Speaker 3: the Chief Judge. And I assume they'll move those people
[35:27] Speaker 3: as soon as possible to confirmation because they're on the floor.
[35:31] Speaker 3: And also there are still two people, one of whom
[35:34] Speaker 3: has had a hearing. Judge Trainer for the eighth Circuit
[35:38] Speaker 3: will have a mark up soon, and another judge, Dan
[35:43] Speaker 3: Domenico for the tenth Circuit, hasn't had a hearing yet.
[35:46] Speaker 3: So there's still people in the pipeline who can be
[35:49] Speaker 3: confirmed this year for the Rep. Pellet bench.
[35:52] Speaker 2: We'll see how fast they can move those nominations. Thanks
[35:55] Speaker 2: so much, Carl. That's Professor Carl Tobias of the University
[35:59] Speaker 2: of Richmond Law School, and that's it for this edition
[36:01] Speaker 2: of The Bloomberg Law Show. Remember you can always get
[36:04] Speaker 2: the latest legal news on our Bloomberg Law podcasts. You
[36:07] Speaker 2: can find them on Apple Podcasts, Spotify, and at www
[36:11] Speaker 2: dot Bloomberg dot com, slash podcast Slash Law, and remember
[36:16] Speaker 2: to tune into The Bloomberg Law Show every weeknight at
[36:19] Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
[36:22] Speaker 2: listening to Bloomberg

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