Federal common law and alien tort statute litigation: Why federal common law can (and should) provide aiding and abetting liability

Harvard International Law Journal

Volumn 50, Issue 1, 2009, Pages 195-229

  Vora, Nilay ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 62549129877     PISSN: 00178063     EISSN: None     Source Type: Journal    
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References (226)

1. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
2. 28 U.S.C. § 1350 (2000).
3. See Comment, 121 HARV. L. REV. 1953 (2008) (discussing this split in concurring opinions in Khulumani v. Barclay National Bank, Ltd., 504 F.3d 254 (2d Cir. 2007));
4. id. at 1957-60 (arguing that federal common law is the appropriate source for aiding and abetting liability);
5. Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 924-29 (2007) (arguing that federal common law is the appropriate source but that federal common law cannot provide such liability);
6. William R. Casto, The New Federal Common Law of Tort Remedies for Violations of International Law, 37 RUTGERS L.J. 635, 650 (2006) (arguing that international law is the appropriate source for indirect liability);
7. see also Paul L. Hoffman & Daniel A. Zaheer, The Rules of the Road: Federal Common Law and Aiding and Abetting Under the Alien Tort Claims Act, 26 LOY. L.A. INT'L & COMP. L. REV. 47 (2003) (arguing that either federal common law or international law may be the appropriate source, but that both sources define identical standards for aiding and abetting liability).
8. See, e.g., Doe I v. Unocal Corp., 395 F.3d 932, 967 (9th Cir. 2002) (Reinhardt, J., concurring), vacated & reh'g granted, 395 F.3d 978 (9th Cir. 2003), and dismissed, 403 F.3d 708 (9th Cir. 2005) (en banc);
9. Comment, supra note 3, at 1960.
10. See infra Part II.A.
11. Sosa, 542 U.S. at 733 n.21. This footnote has been much discussed because the Supreme Court referenced a case that was being heard in the federal disttict courts. In fact, the Court even questioned Alvarez-Machain's attorney about Apartheid litigation during oral argument in Sosa v. Alvarez-Machain. See Transcript of Oral Argument, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (Nos. 03-339, 03-485), 2004 WL 772092.
12. Khulumani, 504 F.3d at 260. The court was not able to use a single rationale to reach this result, however, because the majority disagreed about whether federal common law or international law provided the relevant theory of aiding and abetting liability. Compare id. at 268-70 (Katzmann, J., concurring) (arguing that Sosa indicates that aiding and abetting liability would have to be recognized by international law for the ATS to provide jurisdiction and for the federal common law to provide a cause of action) with id. at 284 (Hall, J., concurring) ("As Sosa makes clear, a federal court must turn to international law to divine standards of primary liability under the ATCA. To derive a standard of accessorial liability, however, a federal court should consult the federal common law."). The issue was therefore "left to a future panel of this Court [the Second Circuit] to determine whether international or domestic federal common law is the exclusive source from which to derive the applicable standard." Id. at 286 n.4 (Hall, J., concutring).
13. Am. Isuzu Motors, Inc. v. Ntsebeza, 2008 U.S. LEXIS 3868 (2008) (affirming the holding of Khulumani, 504 F.3d at 260). As will be discussed latet in this Article, the Supreme Court appears to have already dealt with this issue in some of the Court's earliest cases. See infra note 101 and accompanying text.
14. Am. Isuzu Motors, Inc., 2008 U.S. LEXIS 3868.
15. Khulumani, 504 F.3d at 286 (Hall, J., concurring).
16. See Ralph 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, 2251 (2004).
17. Id. at 2259.
18. Id.
19. See Bradley, Goldsmith & Moore, supra note 3, at 924-29.
20. Id. at 878-81.
21. Id. at 924-29.
22. See infra note 60 and accompanying text.
23. See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331 (S.D.N.Y. 2005).
24. Bradley, Goldsmith & Moore, supra note 3, at 924-29.
25. Steinhardt, supra note 11, at 2287-90.
26. Sosa v. Alvarez-Machain, 542 U.S. 692, 698 (2004).
27. Id. at 697-98.
28. Id. at 698. Alvarez also attempted to sue others who directly participated in the abduction, as well as the United States and DEA officials under the Federal Tort Claims Act. None of these claims are relevant to this Article, so they will not be discussed.
29. Id. at 712.
30. Id.
31. Id. at 713. But see Steinhardt, supra note 11, at 2250 n.29 ("Contrary to the Supreme Court's assertion, Alvarez-Machain did not argue that the ATS qualified 'as authority for the creation of a new cause of action for torts in violation of the law of nations,' a position the Court then dismiss [sic] as implausible. Instead, Alvarez-Machain took the position that the ATS 'authorizes the federal courts to hear and resolve claims of tortious violations of the law of nations without further Congressional action.' 'Nor is it unusual, unprecedented, imprudent, or unconstitutional for federal courts to fashion common law principles to govern those aspects of [ATS] litigation not governed by the express Congressional incorporation of tort law and the 'law of nations."" (internal citations omitted)).
32. Sosa, 542 U.S. at 712.
33. Id.
34. Id. at 714-24.
35. Id. at 732;
36. see also id. at 725 ("[C]ourts 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.").
37. Id. at 732 (citing Filartiga v. Peña-Irala, 630 F.2d 876, 890 (2d Cir. 1980);
38. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (D.C. Cir. 1984);
39. In re Estate of Marcos Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994)).
40. See Sosa, 542 U.S. at 732 (citing Tel-Oren, 726 F.2d at 781 (Edwards, J., concurring) ("suggesting that the 'limits of section 1350's reach' be defined by 'a handful of heinous actions - each of which violates definable, universal and obligatory norms.'"));
41. see also In re Estate of Marcos Human Rights Litig., 25 F.3d at 1475 ("Actionable violations of international law must be of a norm that is specific, universal, and obligatory.").
42. See Sosa, 542 U.S. at 732-33.
43. Id. at 730 (citing Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) ("recognizing that 'international disputes implicating . . . our relations with foreign nations' are one of the 'narrow areas' in which 'federal common law' continues to exist.")).
44. See id. at 731.
45. Id. at 738. The Court's reasoning is not relevant to the purposes of this Article and will therefore not be examined.
46. Compare Steinhardt, supra note 11, at 2249-51 (discussing how the Sosa Court "grounded the inherently discretionary judgment about the actionable norms of international law in the common law making powers and traditions of the federal judiciary"), with Bradley, Goldsmith & Moore, supra note 3, at 894 (discussing how Sosa authorized "federal courts to recognize post-Erie federal common law causes of action for a limited number of CIL violations").
47. See Hoffman & Zaheer, supra note 3, at 54-63. Professor Erwin Chemerinsky has also posited that these are the two major justifications for creating federal common law. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION §§ 6.2-6.3 (2007).
48. See Textile Workers Union of Am. v. Lincoln Mills of Alabama, 353 U.S. 448 (1957);
49. CHEMERINSKY, supra note 38, § 6.3 (2007).
50. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964) (reasoning that "rules of international law should not be left to divergent and perhaps parochial state interpretations");
51. see also Alfred Hill, The Law-Making Power of the federal Courts: Constitutional Preemption, 67 COLUM. L. REV. 1024, 1025 (1967) (arguing that the Constitution authorizes the judiciary to make federal common law in the area of international relations).
52. Steinhardt, supra note 11, at 2272;
53. see also Hoffman & Zaheer, supra note 3, at 54-55. At least one federal court deciding the issue prior to Sosa agreed with the Modern interpretation. See Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996) ("[T]he Alien Tort [Statute] establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law.");
54. see also Doe I v. Unocal Corp., 395 F.3d 932, 966 (9th Cir. 2002) (Reinhardt, J., concurring) ("It is precisely in order to implement the policies underlying Congress's decision to make the violation of international law a federal tort, that it is necessary to flesh out the statute and apply federal common law;
55. here, we must do so in order to fashion a remedy with respect to the direct or indirect involvement of third parties in the commission of the underlying tort."). Cf. Illinois v. City of Milwaukee, 406 U.S. 91, 100-04 (1972) (holding that federal courts can fashion federal common law remedies to implement policies of federal water pollution statute where statute did not address the specific issue presented in case).
56. Sosa v. Alvarez-Machain, 542 U.S. 692, 719-20 (2004).
57. 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.").
58. See, e.g., Abebe-Jira, 72 F.3d at 848 (citing Lincoln Mills, 353 U.S. at 448) ("[W]e conclude that the Alien Tort Claims Act establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law. Congress, of course, may enact a statute that confers on the federal courts jurisdiction over a particular class of cases while delegating to the courts the task of fashioning remedies that give effect to the federal policies underlying the statute.");
59. In re Estate of Marcos Human Rights Litig., 910 F. Supp. 1460, 1469 (D. Haw. 1995) ("[F]ederal courts are free to and should create federal common law to provide justice for any injury contemplated by the Alien Tort Statute . . . ."). The seminal case in the area of creating federal common law is Lincoln Mills, 353 U.S. at 457, where the Supreme Court stated that "[s]ome [problems] will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy."
60. See Boyle v. United Techs. Corp., 487 U.S. 500, 507 (1988).
61. Hoffman & Zaheer, supra note 3, at 56.
62. "Under the national government, . . . the laws of nations . . . will always be expounded in one sense . . . whereas adjudications on the same points and questions in thirteen States . . . will not always accord or be consistent .... The wisdom of the convention in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government cannot be too much commended." THE FEDERALIST No. 3, at 41, 43 (John Jay) (Clinton Rossiter ed., 1961);
63. see also THE FEDERALIST No. 80, at 475-76 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("[C]ases arising upon treaties and the laws of nations . . . may be supposed proper for the federal jurisdiction.").
64. Steinhardt, supra note 11, at 2274. Some federal judges have agreed with this view. See, e.g., Khulumani v. Barclay National Bank, Ltd., 504 F.3d 254, 286 (2d Cir. 2007) (Hall, J., concurring) ("It remains inescapable, however, that Sosa at best lends Delphian guidance on the question of whether the federal common law or customary international law represents the proper source from which to derive a standard of aiding and abetting liability under the ATCA. Lacking the benefit of clear guidance, I presume a federal court should tesort to its traditional source, the federal common law, when deriving the standard.").
65. Hoffman & Zaheer, supra note 3, at 88.
66. Beth Stephens, Sosa v. Alvarez-Machain: "The Door Is Still Ajar" for Human Rights Litigation in U.S. Courts, 70 BROOK. L. REV. 533, 558 (2004).
67. Hoffman & Zaheer, supra note 3, at 75-80.
68. See Bradley, Goldsmith & Moore, supra note 3, at 878-80.
69. Id. at 878.
70. Id.
71. See id. at 879-80 (quoting Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 47 (1985);
72. Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 887 (1986)).
73. Bradley, Goldsmith & Moore, supra note 3, at 880 (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938))).
74. Id. at 880.
75. Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 456-57 (1957). The Revisionists also cite other Supreme Court cases to similar effect. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 738 (1979) ("[I]n fashioning federal principles ro govern areas left open by Congress, our function is to effectuate congressional policy.");
76. Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 69 (1966) ("If there is a federal statute dealing with the general subject, it is a prime repository of federal policy and a starting point for federal common law.").
77. Professors Bradley, Goldsmith, and Moore wrote their piece primarily to examine the broader quesrion of whether or not customary international law is or could properly be considered incorporated into federal common law. See supra note 3, at 873. This broader question is beyond the scope of this Article because the wholesale incorporation of customary international law is largely irrelevant to the issues surrounding ATS litigation after Sosa.
78. See Bradley, Goldsmith & Moore, supra note 3, at 926-28 (arguing that provision of aiding and abetting liability without statutory authorization is inconsistent with Supreme Court precedent and federal statutes, and that provision of such liability would "require courts to exercise significant policy judgmenr normally reserved to the legislature, such as fashioning the precise standards for what constitutes aiding and abetting");
79. see also id. at 928 ("Consistent with Sosa (and Erie), assessment of such policy issues is best left to the political branches."). As discussed previously, Sosa establishes that federal common law provides the cause of action for violarions of the law of nations that are specific, universal, and obligatory. Thus, the Revisionists make these arguments because they seem to think that aiding and abetting requires a separate federal common law cause of action, independent of the underlying violation that is aided and abetted.
80. See id. at 927 ("Nor does a claim of corporate aiding and abetting appear to meet the requirement in Sosa that norms, ro be actionable under the ATS, must have at least the same 'definite content and acceptance among civilized nations [as} . . . the historical paradigms familiar when [the ATS] was enacted.'" (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 730 (2004))). This argument is inapposite because aiding and abetting is a liability theory, not an independent norm requiring an independent cause of action. See Comment, supra note 3, at 1959 n.52.
81. "In principle, any question involving the legitimacy of federal common law potentially entails four inquiries: (1) Does the issue involve a 'rule of decision'? . . . [D]oes it involve a question concerning . . . remedies available to parties? If the rule is a rule of decision in this sense, an issue of legitimacy is presented and it is necessary to turn to the remaining three inquiries to determine whether federal or state law supplies the rule ....
82. [Omitted.]
83. If the issue involves a rule of decision ... is a federal rule necessary in order to preserve or effectuate some other federal policy that can be derived from the specific intentions of the draftsmen of an authoritative federal text [such as a federal statute]?
84. Finally, if the issue involves a rule of decision, if conventional interpretation does not directly supply a rule, and if a federal rule is not necessary in order to preserve some other federal policy established by an authoritative text, is there evidence, based again on the specific intentions of the draftsmen of an authoritative federal text, that lawmaking power with respect to this issue has been delegated to federal courts in a reasonably circumscribed manner? An affirmative answer to any one of questions (2) through (4) means that federal common law may legitimately supply the rule of decision." Merrill, supra note 55, at 46-47.
85. See supra notes 27-29 and accompanying text.
86. See Merrill, supra note 55, at 46. This would be an example of what Professor Merrill calls delegated lawmaking. "Delegated lawmaking rests on the notion that federal courts can establish rule X, even where there is no specific intent that they do so, provided it can be shown that the issue falls within a reasonably circumscribed class of issues as to which Congress or the framers specifically intended to delegate lawmaking power to the federal courts." Id.
87. Field, supra note 55, at 887.
88. Hoffman & Zaheer, supra nore 3, at 88;
89. see also Larry Kramer, The Lawmaking Power of the Federal Courts, 12 PACE L. REV. 263, 288 (1992) ("[F]ederal judges must wait for Congress to take the first step. Once Congress has acted, however, federal courts can make any common law 'necessary and proper' to implement the statute.").
90. Bradley, Goldsmith & Moore, supra note 3, at 880.
91. See Field, supra note 55, at 924-26, 931-34.
92. United States v. Standard Oil Co., 332 U.S. 301, 307 (1947).
93. For this reason, suggestions that state law provide the rules of decision are fundamentally flawed. See Philip A. Scarborough, Note, Rules of Decision For Issues Arising Under the Alien Tort Statute, 107 COLUM. L. REV. 457 (arguing that federal courts hearing ATS cases should use state law to determine ancillary issues such as aiding and abetting liability).
94. See Hoffman & Zaheer, supra note 3, at 56. Cf. Harold Hongju Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1831-32 (1998) ("Federal judicial determination of most questions of customary international law transpires not in a zone of core state concerns, such as state tort law, but in a foreign affairs area in which the Tenth Amendment has reserved little or no power to the states.");
95. Gerald Neuman, Sense and Nonsense about Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371, 378-79 ("Without the uniformity of federal law, government attorneys would have to persuade fifty independent State legal systems to adopt customary [international law] norms voluntarily. The 'general common law' had provided a coordinating concept that linked those systems in a joint interpretive enterprise; without a replacement, its dismantling would free the States to follow their separate wills, to the detriment of U.S. foreign relations. The characteristics of supremacy over State law and reviewability in the Supreme Court make federal common law an excellent instrument for protection of the federal interest.").
96. Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004).
97. There has been some criticism of the Court's reasoning in Sosa regarding the application of federal common law in this area. See Note, An Objection to Sosa - And to the New Federal Common Law, 119 HARV. L. REV. 2077 (2006).
98. See, e.g., CHEMERINSKY, supra note 38, § 6.3 ("The most recent instance in which the Supreme Court found that a federal statute authorizes federal courts to create and use federal common law was in Sosa v. Alvarez-Machain.").
99. Bradley, Goldsmith & Moore, supra note 3, at 888.
100. Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 457 (1957).
101. Other examples of statutes authorizing federal common law are ERISA and the Antitrust statutes. See CHEMERINSKY, supra note 38, § 6.3.
102. Bradley, Goldsmith & Moore, supra note 3, at 903.
103. Id. at 895-96.
104. Cf. United States v. Kimbell Foods, Inc., 440 U.S. 715, 727 (1979) ("It is precisely when Congress has not spoken in an area comprising issues substantially related to an established program of government operation that Clearfield directs federal courts to fill the interstices of federal legislation according to their own standards." (quotation marks and citations omitted)); Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943) ("In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards." (emphasis added)).
105. Bradley, Goldsmith & Moore, supra note 3, at 896.
106. Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 458-59 (1957) (discussing how a federal common law rule to not impose additional requirements on arbitration enforcement was consistent with congressional policy in favor of enforcement of agreements to arbitrate). Cf. Merrill, supra note 55, at 47 (arguing that federal common law rules are legitimate if the "federal rule [is] necessary in order to preserve or effectuate some . . . federal policy that can be derived from the specific intentions of the draftsmen of an authoritative federal text").
107. 28 U.S.C. § 1350 (2000).
108. 18 U.S.C. § 2333 (1994).
109. 28 U.S.C. §§ 1602-07 (1976).
110. See discussion infra Part IV.A.2.
111. United States v. Kimbell Foods, Inc., 440 U.S. 715, 727 (1979) (quoting Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943)).
112. See, e.g., Khulumani v. Barclay Nat. Bank, Ltd., 504 F.3d 254, 287 (2d Cir. 2007) (Hall, J., concurring) ("[C]ustomary international law and the federal common law both include standards of aiding and abetting. In a situation such as this, I opt for the standard articulated by the federal common law. Supreme Court precedent commands the same result.");
113. Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1202 (9th Cir. 2007), vacated and reb'g en banc granted by Sarei v. Rio Tinto, PLC, 2007 U.S. App. LEXIS 19751 (9th Cir. Aug. 20, 2007) ("Courts applying the ATCA draw on federal common law, and there are well-settled theories of vicarious liability under federal common law.");
114. Cabello v. Fernàndez-Larios, 402 F.3d 1148, 1157 (11th Cir. 2005) (ATS permits plaintiffs to recover not only from those who perpetrated the violations of the law of nations but also from those who conspired with or assisted those directly liable on accomplice liability theories);
115. Doe I v. Unocal Corp., 395 F.3d 932, 963 (9th Cir. 2002) (Reinhardt, J., concurring) ("I do not agree that the question of Unocal's tort liability [under the ATS] should be decided by applying any international law test at all. Rather, in my view, the ancillary legal question of Unocal's third-party tort liability should be resolved by applying general federal common law tort principles, such as agency, joint venture, or reckless disregard. . . . Assuming the allegations to be true, the fact that the underlying conduct violated customary international law is sufficient to support liability not only on the part of the governmental actor, but also on the part of a third party whose liability is derivative thereof").
116. Bradley, Goldsmith & Moore, supra note 3, at 926.
117. See, e.g., Harris Trust & Sav. Bank v. Salomon Smith Barney, 530 U.S. 238, 246-48 (2000) (providing secondary liability under ERISA even though the statute does not explicitly provide for such liability);
118. see also Elec. Lab. Supply Co. v. Cullen, 977 F.2d 798, 805 (3d Cir. 1992) ("The application of common law aiding and abetting liability to litigation under a federal statute is appropriate when it advances the goals of the particular statute and when the structure and text of the statute indicate a congressional intent to incorporate such liability." (internal citation omitted)).
119. An Act to Establish the Judicial Courts of the United States (Judiciary Act), ch. 20, § 9, 1 Stat. 73, 77 (1789).
120. Brief of Professors of Federal Jurisdiction and Legal History as Amici Curiae in Support of Respondents at n.2, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339);
121. see also Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT'L L. 461, 461 n. 1 (1989) (discussing the reasoning for various linguistic changes during the codification of the Judiciary Acr).
122. Sosa, 542 U.S. at 720 ("The sparse contemporaneous cases and legal materials referring to the ATS tend to confirm both inferences, that some, but few, torts in violation of the law of nations were understood to be within the common law.").
123. Id. at 721 ("[I]t appears likely that Bradford understood the ATS to provide jurisdiction over what must have amounted to common law causes of action." (quoting Breach of Neutrality, 1 Op. Att'y Gen. 57, 59 (1795))).
124. Id. (quoting Breach of Neutrality, 1 Op. Att'y Gen. 57, 59 (1795)) (emphasis omitted).
125. Breach of Neutrality, 1 Op. Att'y Gen. 57, 58 (1795) (emphasis added).
126. Sosa, 542 U.S. at 721.
127. The Marbois affair involved an attack upon a French Consul General which led to the express provision in the Constitution providing the federal government power to define and punish offenses against the law of nations and eventually led to the passage of the ATS. For more information on the Marbois affair and the history of the ATS, see William R. Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467, 488-89 (1986);
128. Kenneth C. Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Ton Statute, 18 N.Y.U. J. INT'L L. & Pol. 1 (1985);
129. Anne-Marie Burley, supra note 90;
130. William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the "Originalists", 19 HASTINGS INT'L & COMP. L. REV. 221 (1996).
131. Breach of Neutrality, 1 Op. Att'y Gen. 57, 58-59 (1795).
132. Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 288 n.5 (2d Cir. 2007) (Hall, J., concurring) (quoting Breach of Neutrality, 1 Op. Att'y Gen. 57, 58-59 (1795)).
133. See Sosa, 542 U.S. at 720 (discussing Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795) (No. 1,607) and Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793) (No. 9,895)).
134. Talbot v. Jansen, 3 U.S. (3 Dall.) 133 (1795).
135. See, e.g., Henfield's Case, 11 F. Cas. 1099, 1103 (C.C.D. Pa. 1793) (No. 6,360) (discussing liability under the laws of the United States for "committing, aiding or abetting hostilities" in violation of the law of nations).
136. Khulumani, 504 F.3d at 288 n.5 (Hall, J., concurring) ("Cases from that [founding] era, moreover, indicate that secondary liability was recognized as an established part of the federal common law.").
137. To be sure, at least one court has found that the TVPA occupies the field and therefore precludes the pleading of claims of torture and extrajudicial killing under federal common law and the ATS. See Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005), cert. denied, 546 U.S. 1175 (2006). But as Judge Cudahy pointed out in his dissent, that interpretation of the TVPA and the ATS appears to be a minority position. Enahoro, 408 F.3d at 888 (Cudahy, J., dissenting) ("The two acts thus are not competing provisions but are meant to be complementary and mutually reinforcing (if somewhat coextensive). Federal courts addressing this specific issue have ruled accordingly, holding that the TVPA does not restrict the scope and coverage of the ATCA.").
138. See also Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995) ("The scope of the Alien Tort Act remains undiminished by enactment of the Torture Victim Act."). Even if the TVPA does occupy the field with regard to extrajudicial killings and torture, the TVPA itself is an example of the political branches contemplating aiding and abetting liability for violations of international law.
139. See S. REP. No. 102-249, at 8 (1991).
140. See Anne-Marie Burley, supra note 90, at 475 ("The Alien Tort Statute was a direct response to what the Founders understood to be the nation's duty to propagate and enforce those international law rules that directly regulated individual conduct." (emphasis omitted)).
141. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 180-85 (1994).
142. Bradley, Goldsmith & Moore, supra note 3, at 926-27. Moreover, rhese precise arguments were recently rejecred by Judge Hall in his concurring opinion in Khulumani. 504 F.3d at 288 n.5 (Hall, J., concurring).
143. See, e.g., Khulumani, 504 F.3d at 282 (Katzmann, J., concurring) (citing Casto, supra note 3, at 650);
144. id. at 327 (Korman, J., concurring in part and dissenting in part) (asserting that Central Bank requires the conclusion that the ATS "can support the recognition of a cause of action for aiding-and-abetting . . . only if... an international law norm . . . provides for such liability."). But see Comment, supra note 3, at 1960 ("[E]ven if Central Bank is best read as counseling courts to look to international law for aiding and abetting liability, international law in turn says that such liability rules can be supplied by domestic law."). It should also be noted that the Revisionists argue, similar to Judge Kor-man's dissent, that there is insufficient consensus around an international norm of aiding and abetting to meet the Sosa standard for providing a cause of action. See Bradley, Goldsmith & Moore, supra note 3, at 924-27. As previously discussed, this argument misses the mark because aiding and abetting is a liability theory, not a cause of action.
145. See, e.g., Comment, supra note 3, at 1958-59;
146. Hoffman & Zaheer, supra note 3, at 81-82.
147. See, e.g., Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1016-21 (7th Cir. 2002);
148. see also Cent. Bank, 511 U.S. at 176-77 (discussing legislative intent as a key factor in determining not to extend aiding and abetting liability).
149. 291 F.3d at 1016.
150. See 18 U.S.C. § 2333 (1994).
151. 291 F.3d at 1019.
152. Id. at 1020.
153. See supra notes 91-98 and accompanying text.
154. Boim, 291 F.3d at 1021 (citation omitted);
155. see Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (stating that policy considerations may be used to interpret the text and structure of a statute when a literal reading would lead to a result "'so bizarre' that Congress could not have intended it").
156. Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004).
157. See supra notes 91-98, 100 and accompanying text.
158. Cf. Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 246-48 (2000) (providing for aiding and abetting liability and holding that ERISA reaches beyond the immediate tortfeasor to include those who knowingly participate in the tortious action because the statute focuses not on the "universe of possible defendants" but rather on redressing an "act or practice which violates any provision" of the statute) (citation omitted).
159. Bradley, Goldsmith & Moore, supra note 3, at 926.
160. Id. (quoting Sosa, 542 U.S. at 726).
161. See, e.g., Harris Trust, 530 U.S. at 246-48.
162. Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1020 (7th Cir. 2002) (citing Damato v. Hermanson, 153 F.3d 464, 472 n.10 (7th Cir. 1998);
163. see also United States v. Zafiro, 945 F.2d 881, 887 (7th Cir. 1991), aff'd, 506 U.S. 534 (1993);
164. Halberstam v. Welch, 705 F.2d 472, 477, 481-84 (D.C. Cir. 1983));
165. Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 415 (3d Cir. 2003);
166. Decker v. SEC, 631 F.2d 1380, 1387-88 (10th Cir. 1980).
167. Halberstam, 705 F.2d at 477-78 ("Aiding-abetting includes the following elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as parr of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation."); RESTATEMENT (SECOND) OF TORTS § 876(b) (1977);
168. see also Morganroth & Morganroth, 331 F.3d at 415 (referring to the elements of aiding and abetting).
169. Aetna Cas. & Sur. Co. v. Leahey Constr. Co., 219 F.3d 519, 533 (6th Cir. 2000) ("[C]ourts have [referred to Restatement] Section 876 and then concluded that evidence of a 'general awareness of a role in an improper activity' will satisfy the first elemenr of an aiding and abetting claim."). See, e.g., Pavlov-ich v. Nat'l City Bank, No. 04-4372, 2006 U.S. App. LEXIS 535, at *26 (6th Cir. Jan. 9, 2006) ("The first element requires a showing of 'actual knowledge', or perhaps merely 'general awareness', of the primary party's wrongdoing.");
170. Temporomandibular Joint (TMJ) Implant Recipients v. Dow Chem. Co., 113 F.3d 1484, 1495 (8th Cir. 1997) ("[T]he aider and abettor must be generally aware of his role in the overall wrongful activity at the time assistance is provided.");
171. Investors Research Corp. v. SEC, 628 F.2d 168, 177-78 (D.C. Cir. 1980).
172. Halberstam, 705 F.2d at 478 (quoting RESTATEMENT (SECOND) OF TORTS § 876 cmt. d (1977)).
173. See Boim, 291 F.3d at 1020 (providing aiding and abetting liability for terrorism);
174. Hoffman & Zaheer, supra note 3, at 79-80 (discussing how aiding and abetting liability standard is the same under RICO and how Congress codified this standard in ERISA).
175. Stephens, supra note 50, at 558.
176. See Comment, supra note 3, at 1959 (citing S. REP. No. 102-249, at 8).
177. 10 U.S.C. § 948a (2006).
178. Senator Diane Feinstein of California sought to amend the ATS but quickly reneged. See Alien Tort Statute Reform Act, S. 1874, 109th Cong. (2005).
179. See Beth Stephens, Upsetting Checks and Balances: The Bush Administration's Efforts To Limit Human Rights Litigation, 17 HARV. HUM. RTS. J. 169, 169 (2004).
180. See generally STUART EIZENSTAT, IMPERFECT JUSTICE: LOOTED ASSETS, SLAVE LABOR, AND THE UNFINISHED BUSINESS OF WORLD WAR II (2004).
181. See generally Richard Herz, The Liberalizing Effects of Tort: How Corporate Complicity Liability Under the Alien Tort Statute Advances Constructive Engagement, 21 HARV. HUM. RTS. J. (forthcoming 2008).
182. See Hoffman & Zaheer, supra note 3, at 78 (discussing Crimes and Elements for Trials by Military Commission, 32 C.F.R. § 11.6(c)(2)(A) (2004)).
183. Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1017 (7th Cir. 2002) ("The government, in its amicus brief, adds that the language and legislative history of section 2333 indicate an intent by Congress to import into section 2333 civil tort law principles as expressed in the Restatement Second of Torrs, and as applied in the cases. Under that jurisprudence, according to the government, aiding and abetting liability should be applied under section 2333, and that result is in no way inconsistent with Central Bank . . . .").
184. See id. at 1020.
185. Id.
186. 28 U.S.C. § 1605A(a)(1) (West 2008). The FSIA uses the definition of "material support or resources" provided under rhe criminal code for terrorism. "[T]he term 'material support or resources' means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel . . ., and transportation, except medicine or religious materials[.]" 18 U.S.C. § 2339A(b)(1) (2006). This definition of material support shows that it is analogous to aiding and abetting and therein demonstrates that the political branches have supported third party civil liability in the context of terrorism as a matter of policy.
187. 28 U.S.C. § 1605A(a)(1) (West 2008).
188. 28 U.S.C.A. § 1606 (West 2006).
189. See, e.g., Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1016-17 (7th Cir. 2002) ("We take the district court to mean that [FSIA] section [1605A(a)(1)] implies a foreign state may be sued in the United States for acts that would give rise to criminal liability under section 2339A .... The mechanism for suing a foreign state for these acts that would give rise to criminal liability under section 2339A is section 2333 (of the Antiterrorism Act]. The defendants complain that Congress did not specifically mention section 2333 as the device by which plaintiffs might sue foreign governments for violations of section 2339A, but they fail to point to any other source of civil liability. We agree that Congress made clear in section [1605A(a)(1) of the FSIA] its intent to characterize violations of section 2339A as acts of international terrorism under section 2333" (internal citations omitted)).
190. See id. at 1016.
191. See generally LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW (Menno Kamminga & Saman Zia-Zarifi eds., 2000);
192. David Kinley & Junto Tadaki, From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law, 44 VA. J. INT'L L. 931 (2004);
193. Steven Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443 (2001).
194. See Curtis Bradley & Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 819 n.19 ("[A]lthough international law imposes obligations on nations, it does not purport to specify how the nations must treat international obligations as a matter of domestic law.");
195. see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 778 (D.C. Cir. 1984) (Edwards, J., concurring) (finding that individual countries determine under domestic law how to create or define civil actions to be made available for violations of internarional law and that contrary readings would be contrary to the wording of the ATS);
196. Andre Nollkaemper, Internationally Wrongful Acts in Domestic Courts, 101 AM. J. INT'L L. 760, 795 (2007) ("Since international law determines only general principles, leaves much of the detail of the fashioning of relief to the domestic level, and relies on domestic law to supplement it with necessary detail and to adjust it to the domestic context, different states will inevitably come up with different responses.").
197. "A related consideration [in determining whether to provide a cause of action] is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual." Sosa v. Alvarez-Machain, 542 U.S. 692, 732 n.20 (2004).
198. See id.
199. 212 U.S. 481 (1909).
200. Id. at 494-95.
201. United States v. A & P Trucking, 358 U.S. 121, 126 (1958).
202. Harold Hongju Koh, Separating Myth from Reality About Corporate Responsibility Litigation, 7 J. INT'L ECON. L. 263, 265-67 (2004) ("The commonsense tact remains that if states and individuals can be held liable under international law, then so too should corporations, for the simple reason that both scates and individuals act through corporations. Given that reality, what legal sense would it make to let states and individuals immunize themselves from liability for gross violations through the mere artifice of corporate formation?. . . Thus, like any aider and abetter, corporations can be held liable for the small class of cases that arise out of a claim of violation of obligatory, definable, and universal norms of international law (direct offenses) as well as for their complicity in a public actor's violation of international law."). Cf. Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1021 (7th Cir. 2002) ("[T]he organizations, businesses and nations that support and encourage terrorist acts are likely to have reachable assets that they wish to protect. The only way to imperil the flow of money and discourage the financing of terrorist acts is to impose liability on those who knowingly and intentionally supply the funds to the persons who commit the violent acts.").
203. See Sosa v. Alvarez-Machain, 542 U.S. 692, 728 (2004) (noting Congress's intention in passing the Torture Victim Protection Act that the Alien Tort Claims Act "remain[s] intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law" (quoting H.R. REP. No. 102-367, pt. 1, at 4 (1991));
204. see also id. at 725 (articulating the standard for courts hearing "any claim based on the present-day law of nations" (emphasis added)).
205. Funk v. United States, 290 U.S. 371, 382 (1933).
206. See S. Pac. Co. v. Jensen, 244 U.S. 205, 229 (1917).
207. See United States v. Reliable Transfer Co., 421 U.S. 397, 410-11 (1975) (revoking the divided-damages rule because the "reasons that originally led to the Court's adoption of the rule have long since disappeared").
208. Bradley, Goldsmith & Moore, supra note 3, at 918-19.
209. See supra note 96.
210. Bradley, Goldsmith & Moore, supra note 3, at 928-29.
211. Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004).
212. The Sosa Court cited Republic of Austria v. Altmann, 541 U.S. 677 (2004), in a manner that seemed to suggest that the State Department should express its interest in ATS cases to represent the views of the political branches in a manner similar to that provided in the FSIA.
213. See Sosa, 542 U.S. at 733 n.21;
214. see also Margarita S. Clarens, Note, Deference, Human Rights, and the Federal Courts: The Role of the Executive in Alien Tort Statute Litigation, 17 DUKE J. COMP. & INT'L L. 415, 424 (2007).
215. See, e.g., 28 U.S.C. § l605(a)(3) (2006) (providing exception to immunity where property is taken in violation of international law).
216. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) (creating a plausibility standard for pleading in some antitrust cases);
217. id. at 1988 (Stevens, J., dissenting) ("Whether the Court's actions will benefit only defendants in antitrust treble-damages cases, or whether its test for the sufficiency of a complaint will inure to the benefit of all civil defendants, is a question that the future will answer.").
218. See Amanda Sue Nichols, Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility Pleading Standard of Bell Atlantic v. Twombly?, 76 FORDHAM L. REV. 2177 (2008).
219. See Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), vacated and reh'g granted, 395 F.3d 978 (9th Cir. 2003), and dismissed, 403 F.3d 708 (9th Cir. 2005) (en banc);
220. Lisa Girion, Unocal to Settle Rights Claims, L.A. TIMES, Dec. 14, 2004, ar Al.
221. See, e.g., Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254, 287 (Hall, J., concurring) ("[C]ustomary international law and the federal common law both include standards of aiding and abetting. In a situation such as this, I opt for the standard articulated by the federal common law. Supreme Court precedent commands the same result.");
222. Unocal, 395 F.3d at 966 (Reinhardt, J., concurring) (citing County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 237 (1985);
223. Tex. Indus., Inc. v. Radcliff Materials, 451 U.S. 630, 641 (1981);
224. United States v. Kimbell Foods, 440 U.S. 715, 727 (1979);
225. Illinois v. City of Milwaukee, 406 U.S. 91, 100-04 (1972);
226. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964)).