Reconsidering the Purely Jurisdictional View of the Alien Tort Statute

Abstract:     
The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.

This Comment argues that the statute should be regarded as purely jurisdictional, rather than as a hybrid provision both granting jurisdiction and authorizing a cause of action. The hybrid model requires courts to measure the specificity of international law and gauge the practical consequences of recognizing a new cause of action, while the jurisdictional view tasks Congress with making those difficult, complex, and weighty policy decisions. A strictly jurisdictional view of the Alien Tort Statute not only provides a manageable framework for expanding the scope of the statute, but also adheres more closely to well-established views of federal common law. Recent litigation in the Supreme Court and in lower federal courts confirms the need for a new reading of this far-reaching statute.

Number of Pages in PDF File: 53

Keywords: Alien Tort Statute, ATS, Alien Tort Claims Act, Kiobel, Jurisdiction, Article III, Sosa, Customary International Law, International Law, Custom

Accepted Paper Series