Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Is the Alien Tort Statute limited to suits against U.S. citizens?
Today the Supreme Court will hear argument in Kiobel v. Royal Dutch Petroleum, in which the issue is whether corporations can be sued for serious human rights abuses under the Alien Tort Statute (ATS), 28 USC 1350. But some scholars are urging the court to decide the case on other grounds.
There is a set of conservative legal scholars who intensely dislike the ATS and especially its modern use in international human rights cases. This dislike is somewhat mystifying - what the ATS essentially does is allow cases to be brought in federal court, rather than state court, where they implicate torts against aliens in violation of serious international law violations, such as torture or genocide. Would it really be better to hear cases against Paraguayan torturers or Rwandan genocidaires in state court?
Led by Curtis Bradley, Anthony Bellia, and Bradford Clark, this group of scholars argued strenuously that the ATS did not allow cases under modern human rights law at all. After this position was thoroughly repudiated by the Supreme Court in Sosa v. Alvarez-Machain, they have trotted out new arguments. The latest, from Bellia & Clark, is that the ATS only allows suits by aliens against U.S. citizens; it's started to get some traction, as four Ninth Circuit judges adopted a version of this argument in their dissent in the Sarei v. Rio Tinto case decided in October. Bellia & Clark's argument is based on the notion that when the First Congress passed the ATS in 1789, it intended to invoke only constitutional diversity jurisdiction, and that the only purpose of the ATS was to backstop statutory diversity jurisdiction where the amount-in-controversy requirement was not met. Because the Supreme Court later held that diversity jurisdiction only extended to suits between an alien and a U.S. citizen - not suits between aliens - the ATS, which only allows suits by aliens, must necessarily only allow suits against U.S. citizens.
Clever as it may be, this argument is no more consistent with Sosa than these scholars' earlier positions were. The Supreme Court ruled that the ATS was intended to allow federal courts to hear claims for violations of international law as federal common law claims, suggesting that the constitutional basis for ATS jurisdiction was not diversity, but "arising under" federal law. In fact, Sosa presented a case in which both the plaintiff and defendant were aliens, but the Supreme Court voiced no concerns over constitutional jurisdiction.
The counter-argument advanced by Bellia & Clark is decidedly unconvincing. They argue that, before Erie, international law was not considered part of federal law, but rather part of the general common law - which was not covered by "arising under" jurisdiction under the Constitution. Thus they argue that the First Congress must have intended the ATS to be based on diversity jurisdiction, which only covers suits between aliens and citizens.
In fact, this argument does have some support from Sosa - just not from the majority. Justice Scalia's concurrence (which dissented from the holding that the ATS allowed human rights claims) makes a similar argument, citing a Clark article for the proposition that international law was not considered federal law.
There's no legislative history that actually suggests that the First Congress intended the ATS to be based on diversity jurisdiction, or that the Framers did not believe that international law claims could not arise under federal law. Congress easily could have expressly stated that the ATS applied only in diversity cases, or stated that suits under the ATS could only be brought against U.S. citizens. It did neither.
The best reading of Sosa is the one adopted by the majority of the Ninth Circuit in the Sarei case, which thoroughly refuted their dissenting colleagues' adoption of the Bellia & Clark argument. In fact, as the Sarei majority observed, the view that international law claims arise under federal law is so uncontroversial that it is presented in a comment to Section 111 of the Restatement of Foreign Relations: "cases arising under customary international law...are 'Cases...arising under...the Laws of the United States, and Treaties made...under their Authority,' and therefore within the Judicial Power of the United States under Article III, Section 2 of the Constitution."
The very first case to reference the ATS further refutes the notion that the statute was understood only to apply to diversity cases. Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795), decided only six years after the ATS was enacted, concerned a suit by a French captain who captured a Spanish ship during the war between France and Spain, and sought to claim the ship's cargo - slaves - as restitution. The slaves had been "mortgaged" to a British citizen, whose agent sold them. Despite the fact that there were aliens on both sides of the case, the court noted that even if admiralty jurisdiction were lacking, "all doubt" about federal jurisdiction to hear the case was removed by the ATS.
I would wager that a federal judge in 1795 had a pretty good understanding of the ATS and its jurisdictional limits. Clever or not, this latest argument doesn't hold up.