Download this Paper Open PDF in Browser

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

50 Pages Posted: 23 Jan 2005  

Julian Ku

Hofstra University - School of Law

John Yoo

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


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.

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

JEL Classification: K33

Suggested Citation

Ku, Julian mname and Yoo, John mname, 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:

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)

John Choon Yoo

University of California at Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )

1789 Massachusetts Ave., N.W.
Washington, DC 20036
United States

Paper statistics

Abstract Views