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State Courts and Transitory Torts in Transnational Human Rights Cases

3 UC Irvine Law Review 81 (2013)

UC Hastings Research Paper No. 33

15 Pages Posted: 3 Aug 2012 Last revised: 19 Apr 2013

Chimène I. Keitner

University of California Hastings College of the Law

Date Written: February 23, 2013

Abstract

This brief symposium contribution explores some early cases involving state court jurisdiction over common law tort claims for personal injuries that occurred on foreign soil. The idea of transitory torts has been invoked to justify litigating human rights claims in U.S. courts since Filártiga v. Peña-Irala. The ability to adjudicate a claim and provide a remedy for a transitory tort presupposes a legally binding restriction on the defendant’s conduct that gives an injured plaintiff the right to seek redress. International law does not fit this model neatly, because it contains conduct-regulating rules that are translated into “causes of action” by domestic legal systems and by international courts. However, this does not mean that a transitory tort claim can never be based on a violation of international (as opposed to municipal) law; it simply means that the policies animating the transitory tort model should be borne in mind when this model is deployed to enforce international, rather than municipal, law. U.S. courts are most justified in exercising jurisdiction over non-frivolous allegations that the defendant (or the defendant’s agents) violated universally recognized prohibitions on conduct when the claimant cannot seek meaningful redress against the defendant in the state where the conduct occurred.

Keywords: transitory torts, alien tort statute, kiobel, extraterritorial jurisdiction, universal civil jurisdiction

Suggested Citation

Keitner, Chimène I., State Courts and Transitory Torts in Transnational Human Rights Cases (February 23, 2013). 3 UC Irvine Law Review 81 (2013); UC Hastings Research Paper No. 33. Available at SSRN: https://ssrn.com/abstract=2122878

Chimène I. Keitner (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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