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51 Santa Clara L. Rev. [i] (2011)

handle is hein.journals/saclr51 and id is 1 raw text is: SANTA CLARA LAW REVIEW VOLUME 51 2011 NUMBER 1 CONTENTS ARTICLES APPRENDI LAND BECOMES BIzARRo WORLD: POLICY NULLIFICATION AND OTHER SURREAL DOCTRINES IN THE NEW CONSTITUTIONAL LAW OF SENTENCING Imagine a final exam essay answer in constitutional law pre- mised upon doctrinal principles like the following: Decision-makers should preferably give vague explanations grounded in moral philoso- phy rather than specific explanations connected to particular find- ings. Appellate review of trial court decision-making is unconstitu- tional. Courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law; in fact, it is probably unconstitutional to enact legislation ex- pressly compelling courts to follow the legislature's non-constitutional policy preferences. One might expect such an exam answer to receive an F. But if the exam question involved the United States Supreme Court's new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land - which has now become Bizarro World. This article examines and criticizes these and other surreal doctrines in the Court's decisions, and argues that the Court must abrogate its expansion of Apprendi doctrine to restore most issues of sentencing policy to non-constitutional status. Benjamin J. Priester .................................... 1 THE FUTURE OF CORPORATE AIDING AND ABETTING LIABILITY UNDER THE ALIEN TORT STATUTE: A RoADMAP This Article offers a roadmap for the Supreme Court to follow in resolving the most pressing issues in Alien Tort Statute litigation. Are corporations liable under the Alien Tort Statute? Does corporate liability under the ATS conflict with international law? What body of substantive law should courts apply, especially when adjudicating alien tort claims arising under the aiding and abetting theory of lia- bility? What are the policy implications of ATS litigation? The Court's only significant pronouncement on the statute, in Sosa v. Al- varez-Machain, relegated most of these concerns to a footnote that raised more questions than it answered. Taken together the answers to these questions help identify the limits imposed by customary in- ternational law-and by Sosa-on the federal courts regarding corpo- rate aiding and abetting liability. The Article proceeds as follows: Part I reviews the complicated history of the ATS and explains why the Court must revisit many of the issues in Sosa. Part II examines corporate liability under the law of nations and argues that corporations may be held liable under the ATS. Part III explains how the ATS is jurisdictionally compatible with international law. Part IV offers a corrective to the common choice of law mistakes made during ATS adjudication. Part V argues that Pfizer v. Abdullahi was a missed opportunity to clarify corporate aiding and abetting liability under the ATS. Part VI delves into the

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