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Justice Kennedy famously claimed that Kafka's great work, "The Trial," expressed the reality of the American criminal justice system, at least from the defendant's point of view. This essay, the first sections a book just released by the University of Chicago Press, first summarizes the book's argument that the Justice got it just right, and then provides a close reading of "The Trial." This reading agrees with Hannah Arendt's view that the novel is centrally about institutional issues of justice and that it provides an "organizational gothic" vision of contemporary bureaucratic governance in criminal procedure.
The evident split in Kiobel has, in the words of Justice Kennedy, left open a number of significant questions regarding proper elaboration and explanation of the extraterritorial reach of the Alien Tort Statute. Among these are whether a presumption against extraterritoriality should apply and, if it is used, whether inconsistent and ambiguous criteria are preferable in deciding when it is displaced. Extraterritoriality of some sort has been affirmed, but there is an evident lack of consensus on rationales, doctrines, and criteria.
For this reason, its is important to reconsider what the full set of early cases and opinions of Attorneys General add for proper decisionmaking regarding the statute’s evident reach; what is compelled by adequate awareness of the nature of the law that is expressly incorporated by reference and its jurisdictional attributes and substantive grasp; how congressional endorsement of the Filartiga line of cases should displace a judicially-created presumption as well as supposed “foreign relations” concerns and provide needed guidance; how the Charming Betsy rule supplements the need to interpret the statute consistently with universal jurisdiction and responsibility as well as human rights of access to courts and to an effective remedy under international law; and how the rationale in the Bowman exception to a presumption of non-extraterritoriality supports that requirement. This article provides a basis for such an inquiry. Part III identifies evident misconceptions in some of the opinions and is organized into eight areas.