Rules of decision for issues arising under the alien tort statute

Columbia Law Review

Volumn 107, Issue 2, 2007, Pages 457-502

  Scarborough, Philip A ^a  

^a NONE

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EID: 33947647429     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (97)

1. 28 U.S.C. § 1350 (2000). In full, the statute provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Id. It is currendy mosdy used to bring civil suits against despotic political leaders or multinational corporations that have allegedly been in league with oppressive governments in committing human rights violations. See, e.g., Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830, 832-33 (2006) ("[T]he statute, in the past twenty-six years, has become an iconic vehicle for international human rights litigation in U.S. federal courts."). The statute is also known as the Alien Tort Claims Act, though the difference in nomenclature does not seem to be important See Ralph G. Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 Vand. L. Rev. 2241, 2242 n.1 (2004) ("[N]othing of substance turns on the manipulation of the popular name . . . ."). But see Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495, 497 n.2 (S.D.N.Y. 2005) (preferring term Alien Tort Statute over Alien Tort Claims Act because § 1350 does not create independent right of action). In referring to § 1350 as the Alien Tort Statute, this Note follows the lead of the United States Supreme Court in Sosa v. Alvarez-Machain. See 542 U.S. 692, 697 (2004) (referring to § 1350 as "Alien Tort Statute").
2. Filartiga v. Pena-Irala, 630 F.2d 876, 880-87 (2d Cir. 1980) (holding that ATS permitted civil suit against former Paraguayan official for acts of torture and murder committed in Paraguay). Since Filartiga, ATS cases have proliferated. See, e.g., Daniel Diskin, Note, The Historical and Modern Foundations for Aiding and Abetting Liability Under the Alien Tort Statute, 47 Ariz. L. Rev. 805, 806 (2005) ("[A]n expanding progeny of cases followed [the decision in Filartiga]."). Though a comprehensive list of post-Filartiga ATS cases is not necessary here, some examples of the wide range of plaintiffs using the ATS include Bigio v. Coca-Cola Co., 239 F.3d 440, 444 (2d Cir. 2000) (suit by Jewish plaintiffs against corporation that purchased property that had been illegally seized by Egyptian government); Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 12 (D.D.C. 2005) (suit by prisoners abused by U.S. forces at Abu Ghraib against American contractors who provided interpreters and interrogators to American forces in Iraq); Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285, 1288 (S.D. Fla. 2003) (suit by Guatemalan union leaders alleging corporate participation in torture designed to end union leadership activities); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 91 (D.D.C. 2003) (suit by representatives and families of victims of September 11 attacks against organizations that provided funding to al Qaeda); see also James Boeving, Half Full . . . or Completely Empty?: Environmental Alien Tort Claims Post Sosa v. Alvarez-Machain, 18 Geo. Int'l Envd. L. Rev. 109, 112-28 (2005) (discussing ATS cases based on environmental claims).
3. Compare Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002) (applying international law standards), en banc reh'g granted, 395 F.3d 978 (9th Cir. 2003), with Filartiga, 630 F.2d at 889 n.25 (suggesting that foreign law should be chosen for remedial stage of litigation).
4. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 799 (D.C. Cir. 1984) (Bork, J., concurring) (arguing that § 1350 only provided jurisdiction and no causes of action), with id. at 777 (Edwards, J., concurring) (disagreeing with Judge Bork on cause of action analysis). For further discussion, see William R. Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 478-80 (1986) (noting that "section 1350 clearly does not create a statutory cause of action" but concluding that it may have created common law cause of action).
5. 542 U.S. 692 (2004).
6. Id. at 724.
7. Id. at 725 ("[W]e think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized."). Though it is not entirely certain what is included in this formulation, it almost certainly includes violations of jus cogens, or international norms that are so fundamental that they cannot be legitimately ignored by sovereign powers.
8. See, e.g., Unocal, 395 F.3d at 949-51 (looking to international law to determine standards of aiding and abetting liability); Papa v. United States, 281 F.3d 1004, 1012-13 (9th Cir. 2002) (deciding statute of limitation issue under ATS by looking to Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note (2000))); Filartiga v. Pena-Irala, 577 F. Supp. 860, 864-65 (E.D.N.Y. 1984) (looking first to law of Paraguay and, finding it inadequate, using international law to determine whether punitive damages are available for victims of torture).
9. 395 F.3d at 947 (raising question of aiding and abetting liability under ATS for corporation accused of complicity in human rights violations).
10. Id. at 937-42.
11. Id.
12. Id.
13. See, e.g., Abiola v. Abubakar, No. 02-C-6093, 2005 WL 3050607, at *2-*3 (N.D. Ill. Nov. 8, 2005) (noting that "[t]orture and extrajudicial murder . . . are violations of jus cogens norms, which are binding on nations even if they do not agree to them" and denying defendant's motion to dismiss ATS claims of torture and extrajudicial killings); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 113 (E.D.N.Y. 2005) ("'[A]cts of murder, rape, torture, and arbitrary detention of civilians, committed in the course of hostilities' - 'have long been recognized in international law as violations of the law of war.'" (quoting Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995))).
14. See, e.g., Unocal, 395 F.3d at 965-66 (Reinhardt, J., concurring) (disagreeing that international law clearly defines standard for corporate civil aiding and abetting liability).
15. Id. at 947 (majority opinion).
16. The use of the ATS to sue corporations for their activities overseas has been advocated by a number of commentators. See, e.g., Marisa Anne Pagnattaro, Enforcing International Labor Standards: The Potential of the Alien Tort Claims Act, 37 Vand. J. Transnat'l L. 203, 205 (2004) (advocating use of ATS to enforce labor standards against multinational American companies);
17. Igor Fuks, Note, Sosa v. Alvarez-Machain and the Future of ATCA Litigation: Examining Bonded Labor Claims and Corporate Liability, 106 Colum. L. Rev. 112, 112 (2006) (seeing claims for bonded labor as viable post-Sosa). It has been called the "second wave" of ATS litigation.
18. See Curtis A. Bradley, Customary International Law and Private Rights of Action, 1 Chi. J. Int'l L. 421, 421 (2000) [hereinafter Bradley, Customary International Law] (discussing "two waves of international human rights litigation"). Of course, the trend has not been welcomed by all commentators.
19. See, e.g., Gary Clyde Hufbauer & Nicholas K. Mitrokostas, Awakening Monster: The Alien Tort Statute of 1789, at 37-43 (2003) (describing possible damage to trade and foreign direct investment caused by expansive reading of ATS). In addition to holding corporations responsible for human rights violations that they direcdy or indirectly commit abroad, corporations are attractive ATS defendants because there is a real possibility of financial recovery on any judgment (or settlement) that might be obtained. Most individual ATS defendants are judgment proof - either as a matter of law or as a matter of fact: Many individual ATS defendants are government officials of some sort, see Unocal, 395 F.3d at 965 n.3 (Reinhardt, J., concurring) ("It is the rare Alien Tort Claims Act case that does not involve a foreign state or official as a defendant. Most international law norms apply only to states; a private party will ordinarily violate international law . . . only if it transgresses a [jus cogens] legal norm . . . ."), and attempts to sue them often run into jurisprudential obstacles such as sovereign immunity, the act of state doctrine, or nonjusticiability rules.
20. See, e.g., Cynthia R.L. Fairweather, Obstacles to Enforcing International Human Rights Law in Domestic Courts, 4 U.C. Davis J. Int'l L. & Pol'y 119, 120-22 (1998) (describing obstacles presented when suing foreign governments for human rights violations). Even if a plaintiff is able to get past those hurdles, it is still unlikely that any money will be recovered. For example, the Filartiga litigation ultimately resulted in a $10.3 million default judgment against the Paraguayan official, see Filartiga v. Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984) (describing elements of judgment award), but by the time the judgment had been obtained and even before the appeal had been decided, the official had been deported back to Paraguay. See Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980).
21. Unocal, 395 F.3d at 947.
22. See id. at 963 (Reinhardt, J., concurring) (favoring application of federal common law to resolve issue of aiding and abetting liability because principles of choice of law and Supreme Court precedent favored that approach over using ill-defined international law as rule of decision). Later commentators have also disagreed with the majority approach. See, e.g., Recent Cases, Ninth Circuit Uses International Law to Decide Applicable Substantive Law Under Alien Tort Claims Act, 116 Harv. L. Rev. 1525, 1525-26 (2003) (arguing that use of international law in ATS cases "distorts the role of [federal] courts by forcing federal judges to act as surrogate tribunals for international claims").
23. See Unocal, 395 F.3d at 969 (Reinhardt, J., concurring) (finding international law underdeveloped).
24. The term "state law" can take two meanings when discussing international choice of law principles from the United States's perspective: It is either the law of a sovereign nation or the law of an individual state in the United States. See James Paul George, Choice of Law for International Human Rights Cases in United States Courts Under the Alien Tort Statute 14 (Jan. 26, 1984) (unpublished L.L.M. thesis, Columbia University) (on file with Arthur W. Diamond Law Library, Columbia Law School) (noting this distinction); cf. Casto, supra note 4, at 473 (distinguishing American domestic law, international law, and law of foreign states). This Note uses the term in the latter sense - the law of an individual U.S. state - and the term "foreign law" to refer to the law of a sovereign nation.
25. The most well-known example of this is Erie Railroad Co. v. Tompkins, 304 U.S. 64, 77-78 (1938) (requiring application of state common law in diversity cases controlled by section 34 of Judiciary Act of 1789, which was later enacted independendy as Rules of Decision Act (RDA)), though it only applies to cases arising under the diversity jurisdiction. But a state law presumption is also used in federal common law situations to furnish the appropriate federal rule of decision. See, e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-29 (1979) (adopting state law as appropriate rule of federal common law "when there is little need for a nationally uniform body of law").
26. Kimbell Foods, 440 U.S. at 727.
27. Unocal, 395 F.3d at 948 n.23.
28. See id. at 965-66 (Reinhardt, J., concurring).
29. 28 U.S.C. § 1652 (2000). The RDA states that "[t]he laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." Id.
30. See supra note 16 (describing greater potential for recovery on behalf of ATS plaintiffs when corporations are sued). Even when corporations are sued, the likelihood of any money changing hands remains small. The only confirmed case in which ATS plaintiffs actually recovered any money was Unocal, which settled for about $30 million. See Paul Magnusson, Legal Settlements: A Milestone for Human Rights, Bus. Wk., Jan. 24, 2005, at 63, 63. The difficulty in collecting on judgments in human rights cases is not unique to the ATS.
31. See Richard B. Lillich, Damages for Gross Violations of International Human Rights Awarded by US Courts, 15 Hum. Rts. Q. 207, 207-08 (1993) (noting "the unlikelihood of immediate enforcement of judgments" obtained in various human rights cases). But see id. at 208 & n.5 (suggesting that judgment of about $2.5 million against Chile is likely to be enforced in non-ATS suit, Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980), for assassination in District of Columbia of Chilean ambassador and foreign minister).
32. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 749-50 (2004) (Scalia, J., concurring in part and concurring in the judgment) ("[T]he Framers who included reference to 'the Law of Nations' in Article I, § 8, cl. 10, of the Constitution would be entirely content with the post-Erie system I have described, and quite terrified by the 'discretion' endorsed by the Court."); Lee, supra note 1, at 838 (suggesting that original intent of ATS was probably to provide forum for aliens to adjudicate mundane, everyday torts). Of course, since Filartiga, the statute has become the basis for modern human rights litigation in areas as diverse as the war on terror - by bodi victims of the terrorist attacks and victims of the aggressive American campaigns against al Qaeda - and international labor rights. See, e.g., Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 12 (D.D.C 2005) (alleging corporate responsibility for abuse of prisoners by U.S. forces at Abu Ghraib); Burnett v. Al Bakara Inv. & Dev. Corp., 274 F. Supp. 2d 86, 91 (D.D.C. 2003) (seeking damages from entities alleged to have provided funding to al Qaeda); Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1348 (S.D. Fla. 2003) (alleging corporate complicity in murder of union leader); see also Pagnattaro, supra note 16, at 205 (describing potential uses of ATS in international labor rights disputes).
33. See, e.g., Casto, supra note 4, at 490-91 (suggesting ATS was passed to placate international calls for newly founded United States to obey law of nations); Lee, supra note 1, at 888 (noting need for ATS as remedy when individual American states would not provide remedies for violation of safe conducts); Lorelle Londis, Comment, The Corporate Face of the Alien Tort Claims Act: How an Old Statute Mandates a New Understanding of Global Interdependence, 57 Me. L. Rev. 141, 147-48 (2005) ("[Transnational corporations] often possess far greater power than nation-states, yet they . . . [are not] answerable to any one sovereign authority. They may be answerable in part to many different authorities, but there is no final law the international community can point to that regulates th[ese] actor[s].");
34. see also Sarah Joseph, An Overview of the Human Rights Accountability of Multinational Enterprises, in Liability of Multinational Corporations Under International Law 75, 78-79 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000) (noting difficulties nation-states may face when regulating transnational corporations).
35. See, e.g., Casto, supra note 4, at 510 (concluding that legislative history of ATS suggests it should be given liberal interpretation); William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the "Originalists," 19 Hastings Int'l & Comp. L. Rev. 221, 224 (1996) [hereinafter Dodge, Historical Origins] (arguing that history of ATS supports Filartiga's approach to ATS interpretation); Diskin, supra note 2, at 815-21 (discussing case law history); Fuks, supra note 16, at 112 (suggesting bonded labor claims as possible area post-Sosa ATS cases can occupy).
36. See Casto, supra note 4, at 488-510 (describing historical purposes of ATS).
37. See, e.g., Farooq Hassan, Panacea or Mirage? Domestic Enforcement of International Human Rights Law: Recent Cases, 4 Hous. J. Int'l L. 13, 18 (1981) (noting of ATS that "nothing meaningful is known of its origin" and "nothing is known about why it was enacted"); Pagnattaro, supra note 16, at 211-12 (noting obscure origins of ATS). Fortunately, historical scholarship on the topic has improved since Hassan's bleak statement in 1981.
38. See, e.g., IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) ("This old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, no one seems to know whence it came." (citations omitted)). It has become almost a mantra for commentators and courts discussing the ATS to note its obscure origins and infrequent use for its first two hundred years of existence. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 887 & n.21 (2d Cir. 1980) (observing that ATS successfully served as jurisdictional statute in only two cases prior to 1980); Donald J. Kochan, No Longer Little Known but Now a Door Ajar: An Overview of the Evolving and Dangerous Role of the Alien Tort Statute in Human Rights and International Law Jurisprudence, 8 Chap. L. Rev. 103, 103-04 (2005) ("The federal Alien Tort Statute . . . has seen an interesting evolution in the past twenty-five years after remaining almost entirely dormant for nearly two hundred years since its passage . . . ."); Harold Hongju Koh, How Is International Human Rights Law Enforced?, 74 Ind. L.J. 1397, 1414 (1999) (calling ATS "a little-known eighteenth century statute"); see also Kenneth C. Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N.Y.U. J. Int'l L. & Pol. 1, 4-5 & nn.15-16 (1985) (noting rarity with which ATS was invoked prior to Filartiga and providing list of published cases that invoked it, only two of which were successful).
39. See Casto, supra note 4, at 488-89.
40. See id. at 489-95.
41. 4 William Blackstone, Commentaries *68; see also Casto, supra note 4, at 489 (discussing Blackstone's three offenses).
42. See Casto, supra note 4, at 490 (citing 21 Journals of the Continental Congress 1774-1789, at 1136-37 (Gaillard Hunt ed., 1912)).
43. See id. at 481 ("When the [ATS] was passed, . . . a judicial remedy was necessary [for international law violations] in order to assuage the anger of foreign sovereigns."); accord 4 Blackstone, supra note 35, at *68 ("[W]here the individuals of any state violate this general law, it is then the interest as well as duty of the government under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained.").
44. See Casto, supra note 4, at 490 ("[T]he Continental Congress had virtually no legislative powers.").
45. See id. at 491.
46. Id. at 492.
47. Id. at 492-93. Casto describes another international incident that occurred during the ratification process that would have strengthened this view of the weak national government: A constable arrested one of the servants of the Dutch ambassador in the ambassador's New York City residence. Again, state law provided the remedy as the national government was still powerless to do anything about it. Id. at 494.
48. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (codified as amended at 28 U.S.C. § 1350 (2000)).
49. See Casto, supra note 4, at 495 ("Members of the committee surely remembered the Continental Congress's ill-fated law of nations resolution and the intervening affronts to foreign ambassadors."); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 782 (D.C. Cir. 1984) (Edwards, J., concurring) ("There is evidence . . . that the intent of this section was to assure aliens access to federal courts to vindicate any incident which, if mishandled by a state court, might blossom into an international crisis."); Lee, supra note 1, at 880-81 (noting political expediency of providing forum to aggrieved aliens as method to reduce risk of war).
50. See Lee, supra note 1, at 836-38 (arguing that ATS was intended to cover guarantees of safe conduct between sovereign nations).
51. See id.
52. See id.; see also Diskin, supra note 2, at 812-13 (noting role of safe conduct in minds of Alien Tort Statute's authors).
53. See Lee, supra note 1, at 860-66. On this view, the Marbois incident technically would not fall within the ambit of the ATS since Marbois was a member of a diplomatic mission. But concern for the greater problem - unwillingness of states to permit aliens to sue in their courts - would apply even to non-diplomats.
54. See Casto, supra note 4, at 489-90 (stating that common law included right of action for violation of Blackstone's law of nations categories). Of course, at the time the ATS was passed, even Swift v. Tyson, 41 U.S. (16 Pet) 1, 18-19 (1842) (holding that federal common law provided rule of decision for federal courts sitting in diversity when no statute controlled), was decades away from decision. Professor White thus points out that law of nations violations were considered part of the general common law cognizable in both state and federal courts. See G. Edward White, A Customary International Law of Torts 33 (Univ. of Va. Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 34, 2005), available at http://law.bepress.com/uvalwps/ uva_publiclaw/art34 (on file with the Columbia Law Review) ("There was . . . what might be called a pre-Erie law of nations, part of the general law that both federal and state courts declared.").
55. This discussion does not address other significant issues diat the ATS invokes - for example, how to justify constitutionally the jurisdiction of the federal courts over potential cases between two aliens. See, e.g., Casto, supra note 4, at 471-72 & n.32 (noting that ATS cases between two aliens do not fall within alienage jurisdiction of federal courts).
56. See Joseph Modeste Sweeney, A Tort Only in Violation of the Law of Nations, 18 Hastings Int'l & Comp. L. Rev. 445, 446-47 (1995).
57. See White, supra note 48, at 25 n.81 (arguing that Professor Sweeney does not explain "why the ATS would have been necessary when the federal courts already had jurisdiction over prize cases under the Constitution, and why no early cases interpreting the ATS assumed that it referred only to a limited category of prize cases").
58. Customary international law is defined by the Restatement (Third) as "law [that] results from a general and consistent practice of states followed by them from a sense of legal obligation." Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987).
59. See, e.g., Dodge, Historical Origins, supra note 29, at 239-40 (noting that international law is today viewed as part of federal common law but diat in 1789 it would have been "general" common law). The two precedents most supportive of this view are The Paquete Habana, 175 U.S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination."), and United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820) ("What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law."). This approach has the benefit of avoiding constitutional jurisdiction concerns, but it also means that the limitation of the ATS to suits by aliens was surplus: United States citizens would also have the right to enforce violations of the federal common law in U.S. courts under 28 U.S.C. § 1331 (2000). Cf. Lee, supra note 1, at 842 n.45 (noting that addition of general federal question jurisdiction in 1875 made treaty portion of ATS extraneous).
60. See Doe I v. Unocal Corp., 395 F.3d 932, 948 (9th Cir. 2002) ("It is 'well settled that the law of nations is part of federal common law.'" (quoting In re Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493, 502 (9th Cir. 1992))).
61. See id. at 965-66 (Reinhardt, J., concurring) (favoring federal common law to resolve case at bar rather than "evolving standards of international law, such as a nascent criminal law doctrine recendy adopted by an ad hoc international criminal tribunal").
62. See John O. McGinnis, Foreign to Our Constitution, 100 Nw. U. L. Rev. 303, 309 (2006) (noting international law's "democratic deficit" as reason it should not be used to interpret Federal Constitution); cf. Richard A. Posner, The Supreme Court 2004 Term, Foreword: A Political Court, 119 Harv. L. Rev. 31, 88 (2005) ("Judges in foreign countries do not have the slightest democratic legitimacy in a U.S. context").
63. See infra Part III.B.1.
64. For example, a dispute exists over whether corporations should be punished criminally for aiding and abetting international law violations or if civil remedies are adequate. See Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1117-18 (9th Cir. 2006) (Bybee, J., dissenting) ("Human rights violations . . . might more appropriately be addressed with criminal sanctions, rather than civil remedies . . . ."). Compare Mushikiwabo v. Barayagwiza, No. 94-CIV-3627, 1996 WL 164496, at *1 (S.D.N.Y. Apr. 9, 1996) ("[T]he defendant has engaged in conduct so inhuman that it is difficult to conceive of any civil remedy which can begin to compensate the plaintiffs for their loss or adequately express society's outrage at the defendant's actions."), and Diane Marie Amann, Capital Punishment: Corporate Criminal Liability for Gross Violations of Human Rights, 24 Hastings Int'l & Comp. L. Rev. 327, 336-37 (2001) (arguing that "it is appropriate to impose criminal liability on corporations" that have committed "the grossest, most systematic violations of human rights"), with Beth Stephens, Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 Yale J. Int'l L. 1, 12-13 (2002) (acknowledging "concern" that treating egregious human rights violations committed by corporations as torts may "trivialize [ ] . . . an affront against all of humanity" but suggesting that civil litigation against such corporations is still appropriate because of, inter alia, "the benefits that civil litigation offers to the victim, to the human rights movement, and to society" even if lawsuit "does not result in actual payment of the damages awarded").
65. See infra note 178.
66. See, e.g., Guaranty Trust Co. v. York, 326 U.S. 99, 111 (1945) ("Diversity jurisdiction is founded on assurance to non-resident litigants of courts free from susceptibility to potential local bias."). But see John P. Frank, Historical Bases of the Federal Judicial System, 13 Law & Contemp. Probs. 3, 22-28 (1948) (concluding that diversity jurisdiction was motivated by three primary concerns, including avoidance of "regional prejudice against commercial litigants," class biases, and judicial efficiency); Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483, 495-97 (1928) (concluding that "the real fear [motivating diversity jurisdiction] was not of state courts so much as of state legislatures" that might pass laws favoring local debtors).
67. On the post-Erie implications for the ATS, see Casto, supra note 4, at 477 ("The development of a system of international tort law would lead the federal courts down a path similar to the one rejected in Erie."). But see White, supra note 48, at 63-75 (discussing how Erie interacts with post-Sosa views of customary international law and concluding that, despite Erie, state interpretation of international law should be permitted to develop alongside federal interpretation of international law).
68. 726 F.2d 774 (D.C Cir. 1984).
69. 542 U.S. 692, 697-98 (2004) (deciding scope of ATS did not reach plaintiff who had been arbitrarily detained for only one day).
70. See id. at 719 ("[T]here is every reason to suppose that the First Congress did not pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action . . . .").
71. Id. at 724 ("The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time."). As mentioned above, see supra Part LA, state law indeed seemed to provide the requisite cause of action.
72. Sosa, 542 U.S. at 732 ("[F]ederal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted."). The three violations of the law of nations listed by Blackstone were piracy, offenses against ambassadors, and violations of safe conducts. See id. at 715 (referring to Blackstone's trilogy). In the particular facts of the case in Sosa, the Court found that a temporary arbitrary detention of a single day did not rise to the level of a universally condemned international law violation to be recognized under the ATS. Id. at 738. The Court's methodology invoked vigorous disagreement from Justice Scalia on the cause of action issue. See id. at 749-50 (Scalia, J., concurring in part and concurring in the judgment) (disagreeing that class of cognizable causes of action under ATS is still open).
73. Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (finding torture by state official to be violation of law of nations and actionable under ATS).
74. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C Cir. 1984) (dismissing ATS suit against terror organization).
75. See supra Part I.A.
76. Tel-Oren, 726 F.2d at 799 (Bork, J., concurring) ("Neither the law of nations nor any of the relevant treaties provides a cause of action that appellants may assert in courts of the United States."). As mentioned above, Judge Bork's view eventually lost the day in Sosa. See supra notes 63-66 and accompanying text.
77. Sosa, 542 U.S. at 729 (noting that "[a]ll Members of the Court agree that § 1350 is only jurisdictional" but rejecting idea that causes of action cognizable under it are closed to further development). But cf. id. at 743 (Scalia, J., concurring) (taking position substantially similar to Judge Bork's view in Tel-Oren that ATS is only jurisdictional).
78. State courts have concurrent jurisdiction with the federal courts under the ATS. See Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (codified as amended at 28 U.S.C. § 1350 (2000)). For an argument that giving state courts concurrent jurisdiction over customary international law is required post-Erie, see White, supra note 48, at 75 ("Customary international law should remain a pocket of general law, both federal and state, on which Erie has no effect.").
79. But see, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C Cir. 1985) (declining to provide discretionary relief in ATS case because of concerns about becoming inappropriately involved in foreign affairs); Tel-Oren, 726 F.2d at 791 (Edwards, J., concurring) (claiming state courts are inappropriate forums for resolving matters related to foreign affairs).
80. See Tel-Oren, 726 F.2d at 795 (Edwards, J., concurring) (noting that terrorist organizations likely do not fall within ambit of state action). The state action requirement has had considerable lasting power and is evident in many subsequent ATS cases. See, e.g., Kadic v. Karadzic, 70 F.3d 232, 241-43, 245 (2d Cir. 1995) (finding state action sufficiently present but noting that some types of international law violations, such as genocide, do not require state action, and that acts committed in pursuit of international law violations that do not require state action, even if those acts would normally require state action, also can be committed by individuals without state involvement); cf. Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (rejecting aiding and abetting liability under Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note), because case did not sufficiendy allege that defendant corporation acted under "color of law"). The emphasis on the state action requirement seems to be at least somewhat misplaced, for at least some types of law of nations violations - for example, the Marbois incident, see supra notes 39-43 and accompanying text - involved only private actors.
81. See, e.g., Kadic, 70 F.3d at 250 (noting that act of state defense was not available because it had not been raised in lower court).
82. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438 (1989) (dismissing ATS suit brought by Liberian corporations against Argentina on ground of sovereign immunity).
83. See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 446 (2d Cir. 2000) (noting defendant's reliance upon role of comity in motion to dismiss); Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 24-25 (D.D.C. 2005) (declining to assume ATS jurisdiction over question of whether genocide occurred in Indonesia because it "would be an impermissible intrusion in Indonesia's internal affairs").
84. See, e.g., Corrie, 403 F. Supp. 2d at 1032 (dismissing ATS suit on basis of political question doctrine). But see Kadic, 70 F.3d at 249
85. These doctrines would be in addition to other judicial obstacles presumed to limit the litigation of ATS cases, such as exhaustion of local remedies and forum non conveniens. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 879-80, 890 (2d Cir. 1980) (declining to reach forum non conveniens issue that was not considered by district court and noting "foreign relations implications" of this issue); Corrie, 403 F. Supp. 2d at 1025-26 (dismissing Torture Victim Protection Act suit on basis of failure to exhaust remedies in foreign jurisdiction). But see Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1089-99 (9th Cir. 2006) (declining to impose exhaustion of remedies requirement on ATS cases); Abiola v. Abubakar, 267 F. Supp. 2d 907, 910 (N.D. Ill. 2003) (taking jurisdiction over ATS claim despite failure of plaintiff to exhaust local remedies). On the various procedural and doctrinal obstacles ATS plaintiffs face in prosecuting their claims, see Londis, supra note 28, at 169-97 (including discussions of forum non conveniens and state action requirement).
86. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (declining to provide discretionary relief in ATS case because of concerns about becoming inappropriately involved in foreign affairs). Ultimately, similar concerns about maintaining uniformity in foreign affairs are likely responsible for displacing state law with federal law as the dominant rule of decision in ATS cases. See, e.g., Filartiga, 630 F.2d at 890 ("Questions of this nature are fraught with implications for the nation as a whole, and therefore should not be left to the potentially varying adjudications of the courts of the fifty states."); cf. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 413 (2003) ("There is . . . no question that at some point an exercise of state power that touches on foreign relations must yield to the National Government's policy, given the 'concern for uniformity in this country's dealings with foreign nations' . . . ." (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964))); Casto, supra note 4, at 482 (noting impact of foreign affairs doctrine on courts' ability to adjudicate ATS cases). But the presumption in favor of a federal rule of decision in matters related to foreign affairs is only necessary to prevent "'significant conflict'" between state laws and federal policies and interests. See Boyle v. United Techs. Corp., 487 U.S. 500, 507-08 (1988) (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966)); Gary B. Born, International Civil Litigation in United States Courts 15 (3d ed. 1996).
87. See, e.g., Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1204 (CD. Cal. 2002) ("The entire point of the comity doctrine is to afford consideration and respect to the laws and interests of foreign sovereign nations."), vacated in part on other grounds, Sarei, 456 F.3d at 1088-89. But see Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882, 2005 WL 2082846, at *1-*2 (S.D.N.Y. Aug. 30, 2005) (declining to dismiss ATS case on international comity grounds despite Canada's specific request that district court do so).
88. See supra note 74 (noting that impetus for passage of ATS, the Marbois incident, did not involve state action).
89. See Doe I v. Unocal Corp., 395 F.3d 932, 937 (9th Cir. 2002) (describing Unocal's joint venture with Myanmar's government).
90. See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 448 (2d Cir. 2000) ("If a plaintiff-does not allege conduct that supports private liability under international law, he or she must plead that the conduct was 'committed by state officials or under color of law' in order for the court to exercise jurisdiction under the Alien Tort Claims Act." (quoting Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995))).
91. See Casto, supra note 4, at 473-88 (concluding that ATS cases probably call for application of foreign domestic law); see also Filartiga, 630 F.2d at 889 n.25 (noting possibility of using foreign domestic law to resolve case on remand).
92. Classical tort choice of law principles do favor applying the law of the location of the injury. See Restatement (Second) of Conflict of Laws § 145(2)(a) (1971). But the Restatement acknowledges that its rationale is pardy based on "the fact that in multistate cases it is essential that the rules of decision promote mutually harmonious and beneficial relationships in the interdependent community, federal or international," see id. cmt. b, which is essentially the equivalent of a comity rationale.
93. That is, the United States and its component states both have a definite interest in regulating the international conduct of their corporations. Cf. Lee, supra note 1, at 906 (arguing that safe conduct interpretation of ATS extends to any situation where one sovereign is implicidy responsible for actions of its citizens, including, perhaps, citizens abroad).
94. Compare Dodge, Historical Origins, supra note 29, at 234-35 ("The Alien Tort Clause appears to have been passed partly to ensure that aliens could sue for torts in violation of the law of nations regardless of the vagaries of state law."), with Taveras v. Taveras, 397 F. Supp. 2d 908, 914-16 (S.D. Ohio 2005) (declining to exercise jurisdiction under ATS to adjudicate child custody dispute even though plaintiff probably had no other forum to adjudicate it and disfavoring implications of expanding jurisdiction).
95. Historically, there was a distinction between private international law, which governed relationships (typically commercial disputes) between individuals, and public international law, which governed relationships between sovereign nation-states. See Born, supra note 80, at 17. The law of nations in 1789 encompassed both. See id. at 18.
96. See also Beth Stephens & Michael Rattier, International Human Rights Litigation in U.S. Courts 119-20 (1996) (noting choice of law issues that can be raised by ATS).
97. See, e.g., Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. 530, 532-33 (1949) (requiring application of forum state's statute of limitations in diversity cases).