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Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute


Julian Ku


Hofstra University - School of Law

John Yoo


University of California at Berkeley School of Law; American Enterprise Institute


Supreme Court Review, p. 153, 2004
Hofstra Univ. Legal Studies Research Paper No. 04-26
UC Berkeley Public Law Research Paper No. 652141

Abstract:     
This paper discusses the functional ability of federal courts to incorporate customary international law (CIL) through the vehicle of the Alien Tort Statute. In last Term's Sosa v. Alvarez Machain, the Supreme Court concluded that the Alien Tort Statute (ATS) is merely a jurisdictional statute, but also refused to stop the lower courts from allowing aliens to seek damages in federal court for certain international law violations.

We use the Court's under-theorized conclusion as an opportunity to move beyond largely inconclusive formalist debates about the ATS's text, structure, and history. Instead, we conduct a comparative institutional analysis of the role of the courts and the executive in foreign affairs. This functional approach suggests that the executive branch can more effectively achieve the purpose behind the ATS. Critics of this approach have argued that a jurisdictional approach to the ATS would disrupt American foreign relations by allowing the states, rather than a single federal judiciary, to make and enforce CIL. The Court's recent decisions, however, address this concern by permitting presidential declarations of international policy to preempt state law. Thus, CIL could continue as part of the common law of the states enforceable in state court or through diversity jurisdiction in federal court subject to federal preemption by the President.

Number of Pages in PDF File: 50

Keywords: Customary international law, international law, alien tort statute, federal courts, President, separation of powers

JEL Classification: K33

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Date posted: January 23, 2005  

Suggested Citation

Ku, Julian and Yoo, John, Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute. Supreme Court Review, p. 153, 2004; Hofstra Univ. Legal Studies Research Paper No. 04-26; UC Berkeley Public Law Research Paper No. 652141. Available at SSRN: http://ssrn.com/abstract=652141

Contact Information

Julian G. Ku (Contact Author)
Hofstra University - School of Law ( email )
121 Hofstra University
Hempstead, NY 11549
United States
516-463-4237 (Phone)
516-463-6264 (Fax)

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John Choon Yoo
University of California at Berkeley School of Law ( email )
Boalt Hall
890 Simon
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)
American Enterprise Institute ( email )
1150 17th Street, N.W.
Washington, DC 20036
United States
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