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The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations

27 Pages Posted: 27 Apr 2014 Last revised: 21 May 2014

Thomas H. Lee

Fordham University School of Law

Date Written: March 28, 2014

Abstract

This Article explains how the Alien Tort Statute (ATS) began in the late eighteenth century as a national security statute that the First Congress and early federal district judges saw as a way to afford damages remedies to British merchants, creditors, and other subjects whose persons or property were injured under circumstances in which treaties or the law of nations assigned responsibility to the United States. Torts committed within the United States by private American citizens were the most likely such circumstances. The ultimate aims of the statute were to avoid renewed war with Great Britain and the other European powers and to encourage commerce and trade with the same. Two centuries later, the ATS was reborn as an international human rights statute at a time when the United States had become a global superpower with a global human-rights agenda during the administration of President Jimmy Carter. Now that the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum Co. has undermined the international human rights vision of the ATS, this Article suggests that the statute be used once again as a way to afford aliens money damages when they suffer torts under circumstances where the United States bears sovereign responsibility under contemporaneous international law.

Suggested Citation

Lee, Thomas H., The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations (March 28, 2014). 89 Notre Dame L. Rev.4, pp. 1645-1670 (2014); Fordham Law Legal Studies Research Paper No. 2429411. Available at SSRN: https://ssrn.com/abstract=2429411

Thomas H. Lee (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
212.636.6728 (Phone)

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