In his concurring opinion in Kiobel, Justice Breyer quotes this awesome line from Sosa v. Alvarez-Machain, that compares torturers to pirates:
See Sosa v. Alvarez-Machain, 542 U. S. 692, 732 (2004) (“‘[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.’” (quoting Filartiga v. Pena-Irala, 630 F. 2d 876, 890 (CA2 1980) (alteration in original))).
But where did the Filartiga court get that line from? Well the original opinion has no citation:
Among the rights universally proclaimed by all nations, as we have noted, is the right to be free of physical torture. Indeed, for purposes of civil liability, the torturer has become — like the pirate and slave trader before him —hostis humani generis, an enemy of all mankind.
But if it looks familiar–especially to any first-year property students–it should. A very similar phrasing is used in Judge Livington’s dissent in Pierson v . Post!
By the pleadings it is admitted that a fox is a “wild and noxious beast.” Both parties have regarded him, as the law of nations does a pirate, “hostem humani generis,“ and although “de mortuis nil nisi bonum,” be a maxim of our profession, the memory of the deceased has not been spared. His depredations on farmers and on barn yards, have not been forgotten; and to put him to death wherever found, is allowed to be meritorious, and of public benefit. Hence it follows, that our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career.
Of course, “hostem humani generis” translates to enemy of all people.
I am almost positive that a law clerk somewhere recalled that line from Pierson v. Post, and buried it in the opinion. Well played, law clerk, well played.