I’ve posted a new article on the Alien Tort Statute and Kiobel on SSRN. The article, Rethinking the Purely Jurisdictional View of the Alien Tort Statute, demonstrates that the Court should read the Alien Tort Statute as purely jurisdiction, rather than as a hybrid provision both granting jurisdiction to hear claims arising under the law of nations and defining the claims that fall under that jurisdiction.

Readers of this website might fight Part II, which begins on page 23, especially interesting. In that section, I demonstrate that the Alien Tort Statute is an atheoretical compromise between several conflicting strands of federal civil procedure. I discuss how the Court’s opinion in Sosa v. Alvarez-Machain (2004) did more to upset law in this area than to settle it because the opinion did not properly explain how the Alien Tort Statute fits into existing law surrounding Erie and the presumption against implied causes of action. Without clarity on those important issues, lower courts have struggled to build on the Supreme Court’s new framework.

The confusion regarding corporate liability and aiding and abetting liability are symptomatic of the Court’s atheoretical compromise. Litigation in Kiobel v. Royal Dutch Petroleum Co. has been a mess—the lower court decision was criticized for both its substantive outcome and its methodology—but litigation in Mohammed v. PLO demonstrates how easy it can be to litigate similar claims when Congress steps in to define those claims with a level of clarity that courts can never achieve.

The article won the W. Richard Smith Founder’s Award for Writing Excellence for the Best Comment, and it is forthcoming in the Emory International Law Review (2013). The abstract is copied below the fold.

The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.

This article argues that the Statute should be read as purely jurisdictional, rather than as a hybrid provision granting both jurisdiction and a cause of action. In contrast to the current hybrid model, a strictly jurisdictional view of the Alien Tort Statute would provide a manageable framework for expanding the scope of the statute. Rather than requiring courts to first measure the specificity of international law and then gauge the practical consequences of recognizing a new cause of action, the jurisdictional view would require Congress to make those difficult, complex, and weighty policy decisions. A purely jurisdictional view of the statute adheres more closely to well-established views toward federal common law and also patches many of the problems that have arisen in applying the statute.

I hope you all enjoy the article!

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