Reconsidering the Purely Jurisdictional View of the Alien Tort Statute

62 Pages Posted: 3 Apr 2012 Last revised: 1 Nov 2013

Date Written: March 29, 2012

Abstract

The Alien Tort Statute is a remarkable provision. This thirty-three word statute laid dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from a wide array of behavior. 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 instead tasks Congress with making those 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.

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

Suggested Citation

Bhatia, Kedar S., Reconsidering the Purely Jurisdictional View of the Alien Tort Statute (March 29, 2012). 27 Emory Int'l L. Rev. 447 (2013). Available at SSRN: https://ssrn.com/abstract=2031086

Kedar S. Bhatia (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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